Department of Homeland Security v. Thuraissigiam , 207 L. Ed. 2d 427 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
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.,
and THOMAS, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a
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.
Cite as: 591 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
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 ALITO delivered the opinion of the Court.
Every year, hundreds of thousands of aliens are appre-
hended at or near the border attempting to enter this coun-
try illegally. Many ask for asylum, claiming that they
would be persecuted if returned to their home countries.
Some of these claims are valid, and by granting asylum, the
United States lives up to its ideals and its treaty obliga-
tions. Most asylum claims, however, ultimately fail, and
some are fraudulent. In 1996, when Congress enacted the
Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA), 110 Stat. 3009–546, it crafted a system for
weeding out patently meritless claims and expeditiously re-
moving the aliens making such claims from the country. It
was Congress’s judgment that detaining all asylum seekers
until the full-blown removal process is completed would
place an unacceptable burden on our immigration system
and that releasing them would present an undue risk that
they would fail to appear for removal proceedings.
This case concerns the constitutionality of the system
2 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
Congress devised. Among other things, IIRIRA placed re-
strictions on the ability of asylum seekers to obtain review
under the federal habeas statute, but the United States
Court of Appeals for the Ninth Circuit held that these re-
strictions are unconstitutional. According to the Ninth Cir-
cuit, they unconstitutionally suspend the writ of habeas
corpus and violate asylum seekers’ right to due process. We
now review that decision and reverse.
Respondent’s Suspension Clause argument fails because
it would extend the writ of habeas corpus far beyond its
scope “when the Constitution was drafted and ratified.”
Boumediene v. Bush, 553 U. S. 723, 746 (2008). Indeed, re-
spondent’s use of the writ would have been unrecognizable
at that time. Habeas has traditionally been a means to se-
cure release from unlawful detention, but respondent in-
vokes the writ to achieve an entirely different end, namely,
to obtain additional administrative review of his asylum
claim and ultimately to obtain authorization to stay in this
country.
Respondent’s due process argument fares no better.
While aliens who have established connections in this coun-
try have due process rights in deportation proceedings, the
Court long ago held that Congress is entitled to set the con-
ditions for an alien’s lawful entry into this country and that,
as a result, an alien at the threshold of initial entry cannot
claim any greater rights under the Due Process Clause. See
Nishimura Ekiu v. United States, 142 U. S. 651, 660 (1892).
Respondent attempted to enter the country illegally and
was apprehended just 25 yards from the border. He there-
fore has no entitlement to procedural rights other than
those afforded by statute.
In short, under our precedents, neither the Suspension
Clause nor the Due Process Clause of the Fifth Amendment
requires any further review of respondent’s claims, and
IIRIRA’s limitations on habeas review are constitutional as
applied.
Cite as: 591 U. S. ____ (2020) 3
Opinion of the Court
I
A
We begin by briefly outlining the provisions of immigra-
tion law that are pertinent to this case. Under those provi-
sions, several classes of aliens are “inadmissible” and there-
fore “removable.” 8 U. S. C. §§1182, 1229a(e)(2)(A). These
include aliens who lack a valid entry document “at the time
of application for admission.” §1182(a)(7)(A)(i)(I). An alien
who arrives at a “port of entry,” i.e., a place where an alien
may lawfully enter, must apply for admission. An alien like
respondent who is caught trying to enter at some other spot
is treated the same way. §§1225(a)(1), (3).
If an alien is inadmissible, the alien may be removed.
The usual removal process involves an evidentiary hearing
before an immigration judge, and at that hearing an alien
may attempt to show that he or she should not be removed.
Among other things, an alien may apply for asylum on the
ground that he or she would be persecuted if returned to his
or her home country. §1229a(b)(4); 8 CFR §1240.11(c)
(2020). If that claim is rejected and the alien is ordered re-
moved, the alien can appeal the removal order to the Board
of Immigration Appeals and, if that appeal is unsuccessful,
the alien is generally entitled to review in a federal court of
appeals. 8 U. S. C. §§1229a(c)(5), 1252(a). As of the first
quarter of this fiscal year, there were 1,066,563 pending re-
moval proceedings. See Executive Office for Immigration
Review (EOIR), Adjudication Statistics: Pending Cases
(Jan. 2020). The average civil appeal takes approximately
one year.1 During the time when removal is being litigated,
the alien will either be detained, at considerable expense,
or allowed to reside in this country, with the attendant risk
——————
1 See Administrative Office of the U. S. Courts, Federal Judicial Case-
load Statistics, U. S. Courts of Appeals—Median Time Intervals in
Months for Civil and Criminal Appeals Terminated on the Merits (2019)
(Table B–4A) (time calculated for non-prisoner appeals from the filing of
a notice of appeal to the last opinion or final order).
4 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
that he or she may not later be found. §1226(a).
Congress addressed these problems by providing more
expedited procedures for certain “applicants for admission.”
For these purposes, “[a]n alien present in the United States
who has not been admitted or who arrives in the United
States (whether or not at a designated port of arrival . . . )”
is deemed “an applicant for admission.” §1225(a)(1).2 An
applicant is subject to expedited removal if, as relevant
here, the applicant (1) is inadmissible because he or she
lacks a valid entry document; (2) has not “been physically
present in the United States continuously for the 2-year pe-
riod immediately prior to the date of the determination of
inadmissibility”; and (3) is among those whom the Secre-
tary of Homeland Security has designated for expedited re-
moval. §§1225(b)(1)(A)(i), (iii)(I)–(II).3 Once “an immigra-
tion officer determines” that a designated applicant “is
inadmissible,” “the officer [must] order the alien removed
from the United States without further hearing or review.”
§1225(b)(1)(A)(i).
Applicants can avoid expedited removal by claiming asy-
lum. If an applicant “indicates either an intention to apply
for asylum” or “a fear of persecution,” the immigration of-
ficer “shall refer the alien for an interview by an asylum
officer.” §§1225(b)(1)(A)(i)–(ii). The point of this screening
interview is to determine whether the applicant has a “cred-
ible fear of persecution.” §1225(b)(1)(B)(v). The applicant
need not show that he or she is in fact eligible for asylum—
a “credible fear” equates to only a “significant possibility”
——————
2 When respondent entered the country, aliens were treated as appli-
cants for admission if they were “encountered within 14 days of entry
without inspection and within 100 air miles of any U. S. international
land border.” 69 Fed. Reg. 48879 (2004).
3 This authority once belonged to the Attorney General, who is still
named in the statute. See 6 U. S. C. §251(2) (transferring authority over
“[t]he detention and removal program” to the Department).
Cite as: 591 U. S. ____ (2020) 5
Opinion of the Court
that the alien would be eligible. Ibid. Thus, while eligibil-
ity ultimately requires a “well-founded fear of persecution
on account of,” among other things, “race” or “political opin-
ion,” §§1101(a)(42)(A), 1158(b)(1)(A), all that an alien must
show to avoid expedited removal is a “credible fear.”4
If the asylum officer finds an applicant’s asserted fear to
be credible,5 the applicant will receive “full consideration”
of his asylum claim in a standard removal hearing. 8 CFR
§208.30(f ); see 8 U. S. C. §1225(b)(1)(B)(ii). If the asylum
officer finds that the applicant does not have a credible fear,
a supervisor will review the asylum officer’s determination.
8 CFR §208.30(e)(8). If the supervisor agrees with it, the
applicant may appeal to an immigration judge, who can take
further evidence and “shall make a de novo determination.”
§§1003.42(c), (d)(1); see 8 U. S. C. §1225(b)(1)(B)(iii)(III).
An alien subject to expedited removal thus has an oppor-
tunity at three levels to obtain an asylum hearing, and the
——————
4 A grant of asylum enables an alien to enter the country, but even if
an applicant qualifies, an actual grant of asylum is discretionary.
§1158(b)(1)(A).
5 The asylum officer also considers an alien’s potential eligibility for
withholding of removal under §1231(b)(3) or relief under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT). 8 CFR §§208.30(e)(2)–(3). Respondent’s habeas pe-
tition alleges that “he can show a significan[t] possibility that he could
establish eligibility for asylum, withholding of removal, and CAT
claims.” App. 31–32. But he says in his petition that he left Sri Lanka
“to seek asylum in the United States.” Id., at 15. He discusses the crite-
ria only for asylum. Id., at 21; see also Brief for Respondent 4. And he
now alleges that he was improperly “denied asylum.” Id., at 5. Moreover,
the gravamen of his petition is that he faces persecution in Sri Lanka
“because of ” his Tamil ethnicity and political opinions. App. 13. To ob-
tain withholding or CAT relief on that basis, he would need to show “a
greater likelihood of persecution or torture at home than is necessary for
asylum.” Moncrieffe v. Holder, 569 U. S. 184, 187, n. 1 (2013). And he
would not avoid removal, only removal to Sri Lanka. 8 U. S. C.
§1231(b)(3)(A); 8 CFR §208.16(f ). We therefore read his petition as it is
plainly intended: to seek another opportunity to apply for asylum.
6 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
applicant will obtain one unless the asylum officer, a super-
visor, and an immigration judge all find that the applicant
has not asserted a credible fear.
Over the last five years, nearly 77% of screenings have
resulted in a finding of credible fear.6 And nearly half the
remainder (11% of the total number of screenings) were
closed for administrative reasons, including the alien’s
withdrawal of the claim.7 As a practical matter, then, the
great majority of asylum seekers who fall within the cate-
gory subject to expedited removal do not receive expedited
removal and are instead afforded the same procedural
rights as other aliens.
Whether an applicant who raises an asylum claim re-
ceives full or only expedited review, the applicant is not en-
titled to immediate release. Applicants “shall be detained
pending a final determination of credible fear of persecution
and, if found not to have such a fear, until removed.”
§1225(b)(1)(B)(iii)(IV). Applicants who are found to have a
credible fear may also be detained pending further consid-
eration of their asylum applications. §1225(b)(1)(B)(ii); see
Jennings v. Rodriguez, 583 U. S. ___, ___, ___ (2018) (slip
op., at 3, 13).8
B
The IIRIRA provision at issue in this case, §1252(e)(2),
limits the review that an alien in expedited removal may
obtain via a petition for a writ of habeas corpus. That pro-
vision allows habeas review of three matters: first,
“whether the petitioner is an alien”; second, “whether the
petitioner was ordered removed”; and third, whether the
——————
6 See GAO, Immigration: Actions Needed To Strengthen USCIS’s Over-
sight and Data Quality of Credible and Reasonable Fear Screenings 13–
15, and fig. 2 (GAO–20–250, Feb. 2020).
7 See id., at 16, n. b.
8 The Department may grant temporary parole “for urgent humanitar-
ian reasons or significant public benefit.” 8 U. S. C. §1182(d)(5)(A); see
also 8 CFR §§212.5(b), 235.3(b)(2)(iii), and (4)(ii).
Cite as: 591 U. S. ____ (2020) 7
Opinion of the Court
petitioner has already been granted entry as a lawful per-
manent resident, refugee, or asylee. §§1252(e)(2)(A)–(C). If
the petitioner has such a status, or if a removal order has
not “in fact” been “issued,” §1252(e)(5), the court may order
a removal hearing, §1252(e)(4)(B).
A major objective of IIRIRA was to “protec[t] the Execu-
tive’s discretion” from undue interference by the courts; in-
deed, “that can fairly be said to be the theme of the legisla-
tion.” Reno v. American-Arab Anti-Discrimination Comm.,
525 U. S. 471, 486 (1999) (AAADC). In accordance with that
aim, §1252(e)(5) provides that “[t]here shall be no review of
whether the alien is actually inadmissible or entitled to any
relief from removal.” And “[n]otwithstanding” any other
“habeas corpus provision”—including 28 U. S. C. §2241—
“no court shall have jurisdiction to review” any other “indi-
vidual determination” or “claim arising from or relating to
the implementation or operation of an order of [expedited]
removal.” §1252(a)(2)(A)(i). In particular, courts may not
review “the determination” that an alien lacks a credible
fear of persecution. §1252(a)(2)(A)(iii); see also
§§1252(a)(2)(A)(ii), (iv) (other specific limitations).
Even without the added step of judicial review, the
credible-fear process and abuses of it can increase the bur-
dens currently “overwhelming our immigration system.” 84
Fed. Reg. 33841 (2019).9 The past decade has seen a 1,883%
——————
9 References to the factual material in this regulation are not endorse-
ments of the regulation itself. And like the immigration officials in this
case, we do not question the basis for respondent’s asserted fear. See
infra, at 9. But we note the Department’s view that credible-fear claims
can be asserted “in the hope of a lengthy asylum process that will enable
[the claimants] to remain in the United States for years . . . despite their
statutory ineligibility for relief ” and that an influx of meritless claims
can delay the adjudication of meritorious ones; strain detention capacity
and degrade detention conditions; cause the release of many inadmissi-
ble aliens into States and localities that must shoulder the resulting
costs; divert Department resources from protecting the border; and ag-
gravate “the humanitarian crisis created by human smugglers.” 84 Fed.
8 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
increase in credible-fear claims, and in 2018 alone, there
were 99,035 claims. See id., at 33838 (data for fiscal years
2008 to 2018). The majority have proved to be meritless.
Many applicants found to have a credible fear—about 50%
over the same 10-year period—did not pursue asylum. See
EOIR, Adjudication Statistics: Rates of Asylum Filings in
Cases Originating With a Credible Fear Claim (Nov. 2018);
see also 84 Fed. Reg. 33841 (noting that many instead ab-
scond). In 2019, a grant of asylum followed a finding of
credible fear just 15% of the time. See EOIR, Asylum Deci-
sion Rates in Cases Originating With a Credible Fear Claim
(Oct. 2019). Fraudulent asylum claims can also be difficult
to detect,10 especially in a screening process that is designed
to be expedited and that is currently handling almost
100,000 claims per year.
The question presented thus has significant conse-
quences for the immigration system. If courts must review
credible-fear claims that in the eyes of immigration officials
——————
Reg. 33831; see also, e.g., Violent Crime Control and Law Enforcement
Act of 1994, §130010(a)(3)(C), 108 Stat. 2030 (legislative finding of “a
drain on limited resources resulting from the high cost of processing friv-
olous asylum claims”); Arizona v. United States, 567 U. S. 387, 397–398
(2012); Homeland Security Advisory Council, Final Emergency Interim
Report 1, 7–8 (Apr. 16, 2019); Letter from K. Nielsen, Secretary of Home-
land Security, to Members of Congress 1–2 (Mar. 28, 2019); GAO, Asy-
lum: Additional Actions Needed To Assess and Address Fraud Risks 24
(GAO–16–50, Dec. 2015) (GAO Fraud Report); Congressional Budget Of-
fice, The Impact of Unauthorized Immigrants on the Budgets of State
and Local Governments 8–9 (Dec. 2007); Brief for State of Arizona et al.
as Amici Curiae 9–12.
10 See, e.g., GAO Fraud Report 32–33 (discussing Operation Fiction
Writer, a criminal investigation of attorneys and application preparers
who counseled asylum seekers to lie about religious persecution and
forced abortions); Asylum Fraud: Abusing America’s Compassion? Hear-
ing before the Subcommittee on Immigration and Border Security of the
House Committee on the Judiciary, 113th Cong., 2d Sess. (2014) (testi-
mony of Louis D. Crocetti, Jr.) (describing study in which 58% of ran-
domly selected asylum applications exhibited indicators of possible fraud
and 12% were determined to be fraudulent).
Cite as: 591 U. S. ____ (2020) 9
Opinion of the Court
and an immigration judge do not meet the low bar for such
claims, expedited removal would augment the burdens on
that system. Once a fear is asserted, the process would no
longer be expedited.
C
Respondent Vijayakumar Thuraissigiam, a Sri Lankan
national, crossed the southern border without inspection or
an entry document at around 11 p.m. one night in January
2017. App. 38. A Border Patrol agent stopped him within
25 yards of the border, and the Department detained him
for expedited removal. Id., at 37–39, 106; see
§§1182(a)(7)(A)(i)(I), 1225(b)(1)(A)(ii), and (b)(1)(B)(iii)(IV).
He claimed a fear of returning to Sri Lanka because a group
of men had once abducted and severely beaten him, but he
said that he did not know who the men were, why they had
assaulted him, or whether Sri Lankan authorities would
protect him in the future. Id., at 80. He also affirmed that
he did not fear persecution based on his race, political opin-
ions, or other protected characteristics. Id., at 76–77; see
§1101(a)(42)(A).
The asylum officer credited respondent’s account of the
assault but determined that he lacked a “credible” fear of
persecution, as defined by §1225(b)(1)(B)(v), because he had
offered no evidence that could have made him eligible for
asylum (or other removal relief ). Id., at 83, 87, 89; see
§1158(b)(1)(A). The supervising officer agreed and signed
the removal order. Id., at 54, 107. After hearing further
testimony from respondent, an Immigration Judge affirmed
on de novo review and returned the case to the Department
for removal. Id., at 97.
Respondent then filed a federal habeas petition. Assert-
ing for the first time a fear of persecution based on his
Tamil ethnicity and political views, id., at 12–13, he argued
that he “should have passed the credible fear stage,” id., at
30. But, he alleged, the immigration officials deprived him
10 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
of “a meaningful opportunity to establish his claims” and
violated credible-fear procedures by failing to probe past his
denial of the facts necessary for asylum. Id., at 27, 32. Al-
legedly they also failed to apply the “correct standard” to
his claims—the “significant possibility” standard—despite
its repeated appearance in the records of their decisions.
Id., at 30; see id., at 53, 84–89, 97. Respondent requested
“a writ of habeas corpus, an injunction, or a writ of manda-
mus directing [the Department] to provide [him] a new op-
portunity to apply for asylum and other applicable forms of
relief.” Id., at 33. His petition made no mention of release
from custody.
The District Court dismissed the petition, holding that
§§1252(a)(2) and (e)(2) and clear Ninth Circuit case law
foreclosed review of the negative credible-fear determina-
tion that resulted in respondent’s expedited removal order.
287 F. Supp. 3d 1077, 1081 (SD Cal. 2018). The court also
rejected respondent’s argument “that the jurisdictional lim-
itations of §1252(e) violate the Suspension Clause,” again
relying on Circuit precedent. Id., at 1082–1083.
The Ninth Circuit reversed. It found that our Suspension
Clause precedent demands “reference to the writ as it stood
in 1789.” 917 F. 3d 1097, 1111 (2019). But without citing
any pre-1789 case about the scope of the writ, the court held
that §1252(e)(2) violates the Suspension Clause. See id., at
1113–1119. The court added that respondent “has proce-
dural due process rights,” specifically the right “ ‘to expe-
dited removal proceedings that conformed to the dictates of
due process.’ ” Id., at 1111, n. 15 (quoting United States v.
Raya-Vaca, 771 F. 3d 1195, 1203 (CA9 2014)). Although the
decision applied only to respondent, petitioners across the
Circuit have used it to obtain review outside the scope of
§1252(e)(2), and petitioners elsewhere have attempted to
Cite as: 591 U. S. ____ (2020) 11
Opinion of the Court
follow suit.11
The Ninth Circuit’s decision invalidated the application
of an important provision of federal law and conflicted with
a decision from another Circuit, see Castro v. United States
Dept. of Homeland Security, 835 F. 3d 422 (CA3 2016). We
granted certiorari, 589 U. S. ___ (2019).
II
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.” U. S. Const., Art. I, §9, cl. 2. In INS v. St.
Cyr, 533 U. S. 289 (2001), we wrote that the Clause, at a
minimum, “protects the writ as it existed in 1789,” when
the Constitution was adopted. Id., at 301 (internal quota-
tion marks omitted). And in this case, respondent agrees
that “there is no reason” to consider whether the Clause ex-
tends any further. Brief for Respondent 26, n. 12. We
therefore proceed on that basis.12
——————
11 See, e.g., Mnatsakanyan v. United States Dept. of Homeland Secu-
rity, 2020 WL 1245371, *5 (SD Cal., Mar. 16, 2020) (“Given the identical
claims here as in Thuraissigiam, the Court concludes it has jurisdiction
over Petitioner’s habeas petition under the Suspension Clause”); Kaur v.
Barr, 2019 WL 4974425, *3 (D Ariz., Oct. 8, 2019) (granting stay of re-
moval in light of the decision below); Rodrigues v. McAleenan, 2020 WL
363041, *2, *6 (ND Tex., Jan. 22, 2020) (declining to follow the decision
below).
12 The original meaning of the Suspension Clause is the subject of con-
troversy. In INS v. St. Cyr, 533 U. S. 289 (2001), the majority and dissent
debated whether the Clause independently guarantees the availability
of the writ or simply restricts the temporary withholding of its operation.
Compare id., at 300, with id., at 336–341 (Scalia, J., dissenting). See also
Ex parte Bollman, 4 Cranch 75, 95 (1807). We do not revisit that ques-
tion. Nor do we consider whether the scope of the writ as it existed in
1789 defines the boundary of the constitutional protection to which the
St. Cyr Court referred, since the writ has never encompassed respond-
ent’s claims.
12 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
B
This principle dooms respondent’s Suspension Clause ar-
gument, because neither respondent nor his amici have
shown that the writ of habeas corpus was understood at the
time of the adoption of the Constitution to permit a peti-
tioner to claim the right to enter or remain in a country or
to obtain administrative review potentially leading to that
result. The writ simply provided a means of contesting the
lawfulness of restraint and securing release.
In 1768, Blackstone’s Commentaries—usually a “satis-
factory exposition of the common law of England,” Schick v.
United States, 195 U. S. 65, 69 (1904)—made this clear.
Blackstone wrote that habeas was a means to “remov[e] the
injury of unjust and illegal confinement.” 3 W. Blackstone,
Commentaries on the Laws of England 137 (emphasis de-
leted). Justice Story described the “common law” writ the
same way. See 3 Commentaries on the Constitution of the
United States §1333, p. 206 (1833). Habeas, he explained,
“is the appropriate remedy to ascertain . . . whether any
person is rightfully in confinement or not.” Ibid.
We have often made the same point. See, e.g., Preiser v.
Rodriguez, 411 U. S. 475, 484 (1973) (“It is clear . . . from
the common-law history of the writ . . . that the essence of
habeas corpus is an attack by a person in custody upon the
legality of that custody, and that the traditional function of
the writ is to secure release from illegal custody”); Wil-
kinson v. Dotson, 544 U. S. 74, 79 (2005) (similar); Munaf v.
Geren, 553 U. S. 674, 693 (2008) (similar).
——————
We also do not reconsider whether the common law allowed the issu-
ance of a writ on behalf of an alien who lacked any allegiance to the coun-
try. Compare Boumediene v. Bush, 553 U. S. 723, 746–747 (2008) (form-
ing “no certain conclusions”), with Brief for Criminal Justice Legal
Foundation as Amicus Curiae 5–13. See also Hamburger, Beyond Pro-
tection, 109 Colum. L. Rev. 1823, 1847 (2009); P. Halliday, Habeas Cor-
pus: From England to Empire 204 (2010) (Halliday).
Cite as: 591 U. S. ____ (2020) 13
Opinion of the Court
In this case, however, respondent did not ask to be re-
leased.13 Instead, he sought entirely different relief: vaca-
tur of his “removal order” and “an order directing [the De-
partment] to provide him with a new . . . opportunity to
apply for asylum and other relief from removal.” App. 14
(habeas petition). See also id., at 31 (“a fair procedure to
apply for asylum, withholding of removal, and CAT relief”);
id., at 14 (“a new, meaningful opportunity to apply for asy-
lum and other relief from removal”). Such relief might fit
an injunction or writ of mandamus—which tellingly, his pe-
tition also requested, id., at 33—but that relief falls outside
the scope of the common-law habeas writ.
Although the historic role of habeas is to secure release
from custody, the Ninth Circuit did not suggest that re-
lease, at least in the traditional sense of the term,14 was re-
quired. Instead, what it found to be necessary was a “mean-
ingful opportunity” for review of the procedures used in
determining that respondent did not have a credible fear of
persecution. 917 F. 3d, at 1117. Thus, even according to
——————
13 In his brief, respondent states that “he requests an entirely ordinary
habeas remedy: conditional release pending a lawful adjudication. J. A.
33.” Brief for Respondent 29. Citing the same page, the dissent argues
that respondent “asked the district court to ‘[i]ssue a writ of habeas cor-
pus’ without further limitation on the kind of relief that might entail.”
Post, at 7 (opinion of SOTOMAYOR, J.) (quoting App. 33). However, neither
on the cited page nor at any other place in the habeas petition is release,
conditional or otherwise, even mentioned. And in any event, as we dis-
cuss infra, at 15–21, the critical point is that what he sought in the ha-
beas petition and still seeks—a writ “directing [the Department] to pro-
vide [him] a new opportunity to apply for asylum,” App. 33—is not a form
of relief that was available in habeas at the time of the adoption of the
Constitution.
14 Although the Ninth Circuit never mentioned release, its opinion
might be read to suggest that gaining a right to remain in this country
would constitute a release from the “restraint” of exclusion. See 917
F. 3d 1097, 1117 (2019). No evidence has been called to our attention
that the writ was understood in 1789 to apply to any comparable form of
restraint.
14 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
the Ninth Circuit, respondent’s petition did not call for tra-
ditional habeas relief.
Not only did respondent fail to seek release, he does not
dispute that confinement during the pendency of expedited
asylum review, and even during the additional proceedings
he seeks, is lawful. Nor could he. It is not disputed that he
was apprehended in the very act of attempting to enter this
country; that he is inadmissible because he lacks an entry
document, see §§1182(a)(7)(A), 1225(b)(1)(A)(i); and that,
under these circumstances, his case qualifies for the expe-
dited review process, including “[m]andatory detention”
during his credible-fear review, §§1225(b)(1)(B)(ii), (iii)(IV).
Moreover, simply releasing him would not provide the right
to stay in the country that his petition ultimately seeks.
Without a change in status, he would remain subject to ar-
rest, detention, and removal. §§1226(a), 1229a(e)(2).
While respondent does not claim an entitlement to re-
lease, the Government is happy to release him—provided
the release occurs in the cabin of a plane bound for Sri
Lanka. That would be the equivalent of the habeas relief
Justice Story ordered in a case while riding circuit. He is-
sued a writ requiring the release of a foreign sailor who
jumped ship in Boston, but he provided for the sailor to be
released into the custody of the master of his ship. Ex parte
D’Olivera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813).
Respondent does not want anything like that. His claim
is more reminiscent of the one we rejected in Munaf. In
that case, American citizens held in U. S. custody in Iraq
filed habeas petitions in an effort to block their transfer to
Iraqi authorities for criminal prosecution. See 553 U. S., at
692. Rejecting this use of habeas, we noted that “[h]abeas
is at its core a remedy for unlawful executive detention” and
that what these individuals wanted was not “simple re-
lease” but an order requiring them to be brought to this
country. Id., at 693, 697. Claims so far outside the “core”
of habeas may not be pursued through habeas. See, e.g.,
Cite as: 591 U. S. ____ (2020) 15
Opinion of the Court
Skinner v. Switzer, 562 U. S. 521, 535, n. 13 (2011).
Like the habeas petitioners in Munaf, respondent does
not want “simple release” but, ultimately, the opportunity
to remain lawfully in the United States. That he seeks to
stay in this country, while the habeas petitioners in Munaf
asked to be brought here from Iraq, see post, at 19–20 (opin-
ion of SOTOMAYOR, J.), is immaterial. In this case as in
Munaf, the relief requested falls outside the scope of the
writ as it was understood when the Constitution was
adopted. See Castro, 835 F. 3d, at 450–451 (Hardiman, J.,
concurring dubitante) (“Petitioners here seek to alter their
status in the United States in the hope of avoiding release
to their homelands. That prayer for relief . . . dooms the
merits of their Suspension Clause argument” (emphasis de-
leted)).
III
Disputing this conclusion, respondent argues that the
Suspension Clause guarantees a broader habeas right. To
substantiate this claim, he points to three bodies of case
law: British and American cases decided prior to or around
the time of the adoption of the Constitution, decisions of
this Court during the so-called “finality era” (running from
the late 19th century to the mid-20th century), and two of
our more recent cases. None of these sources support his
argument.
A
Respondent and amici supporting his position have done
considerable research into the use of habeas before and
around the time of the adoption of the Constitution,15 but
——————
15 Respondent and his amici rely primarily on British cases decided be-
fore the adoption of the Constitution. “There is widespread agreement
that the common-law writ of habeas corpus was in operation in all thir-
teen of the British colonies that rebelled in 1776,” but “almost no re-
ported decisio[n] from the period.” Oldham & Wishnie, The Historical
Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Immigration L. J.
16 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
they have not unearthed evidence that habeas was then
used to obtain anything like what is sought here, namely,
authorization for an alien to remain in a country other than
his own or to obtain administrative or judicial review lead-
ing to that result. All that their research (and the dissent’s)
shows is that habeas was used to seek release from deten-
tion in a variety of circumstances. In fact, respondent and
his amici do not argue that their cases show anything more.
See Brief for Respondent 27 (arguing that habeas was
“available” at the founding “to test all forms of physical re-
straint”); Brief for Scholars of the Law of Habeas Corpus as
Amici Curiae 11 (the “historical record . . . demonstrates
that the touchstone for access to the writ” was “whether the
petitioner challenges control of his person”).
Because respondent seeks to use habeas to obtain some-
thing far different from simple release, his cause is not
aided by the many release cases that he and his amici have
found. Thus, for present purposes, it is immaterial that ha-
beas was used to seek release from confinement that was
imposed for, among other things, contempt of court (see
Bushell’s Case, Vaugh. 135, 124 Eng. Rep. 1006 (C. P.
1670)), debt (see Hollingshead’s Case, 1 Salk. 351, 91 Eng.
Rep. 307 (K. B. 1702); Rex v. Nathan, 2 Str. 880, 93 Eng.
Rep. 914 (K. B. 1724)), medical malpractice (see Dr. Groen-
velt’s Case, 1 Raym. Ld. 213, 91 Eng. Rep. 1038 (K. B.
1702)), failing to pay an assessment for sewers (see Hetley
v. Boyer, Cro. Jac. 336, 79 Eng. Rep. 287 (K. B. 1613)), fail-
ure to lend the King money (see Darnel’s Case, 3 How. St.
Tr. 1 (K. B. 1627)), carrying an authorized “dagg,” i.e., hand-
gun (see Gardener’s Case, Cro. Eliz. 821, 78 Eng. Rep. 1048
(K. B. 1600)), “impressment” into military service or invol-
untary servitude (see St. Cyr, 533 U. S., at 302), or refusing
to pay a colonial tax (see Oldham & Wishnie 496). Nor does
it matter that common-law courts sometimes ordered or
——————
485, 496 (2002) (Oldham & Wishnie) (internal quotation marks omitted).
Cite as: 591 U. S. ____ (2020) 17
Opinion of the Court
considered ordering release in circumstances that would be
beyond the reach of any habeas statute ever enacted by
Congress, such as release from private custody. See, e.g.,
Rex v. Delaval, 3 Burr. 1434, 1435–1437, 97 Eng. Rep. 913,
914 (K. B. 1763) (release of young woman from “indentures
of apprenticeship”); Rex v. Clarkson, 1 Str. 444, 93 Eng.
Rep. 625 (K. B. 1722) (release from boarding school); Lister’s
Case, 8 Mod. 22, 88 Eng. Rep. 17 (K. B. 1721) (release of
wife from estranged husband’s restraint). What matters is
that all these cases are about release from restraint. Ac-
cord, Preiser, 411 U. S., at 484–485, and nn. 3–5.16
Respondent and his amici note that habeas petitioners
were sometimes released on the condition that they conform
to certain requirements. See Brief for Respondent 30; Legal
Historians Brief 18. For example, they cite a case in which
a man was released on condition that he treat his wife well
and support her, and another in which a man was released
on condition that he issue an apology. Ibid. But what re-
spondent sought in this case is nothing like that. Respond-
ent does not seek an order releasing him on the condition
that he do or refrain from doing something. What he
wants—further review of his asylum claim—is not a condi-
tion with which he must comply. Equally irrelevant is the
practice, discussed in the dissent, of allowing the executive
to justify or cure a defect in detention before requiring re-
lease. See post, at 16–18. Respondent does not seek this
sort of conditional release either, because the legality of his
detention is not in question.
——————
16 Respondent’s amici also point out that, during the English Civil War,
Parliament created a national religion and a “bewildering array of com-
mittees” to manage the war. Brief for Legal Historians as Amici Curiae
10 (Legal Historians Brief ) (internal quotation marks omitted). They
argue that “[h]abeas corpus was readily available to test the legality of
their actions.” Ibid. But according to their source, the challenged actions
were “imprisonment orders,” including imprisonment of clergymen who
refused to conform. Halliday 163–164.
18 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
Respondent contends that two cases show that habeas
could be used to secure the right of a non-citizen to remain
in a foreign country, but neither proves his point. His first
case, involving a Scot named Murray, is one for which no
official report is available for us to review.17 We could
hardly base our decision here on such a decision.18
His second case, Somerset v. Stewart, Lofft. 1, 98 Eng.
Rep. 499 (K. B. 1772), is celebrated but does not aid re-
spondent. James Somerset was a slave who was “de-
tain[ed]” on a ship bound for Jamaica, and Lord Mansfield
famously ordered his release on the ground that his deten-
tion as a slave was unlawful in England. Id., at 19, 98 Eng.
Rep., at 510. This relief, release from custody, fell within
the historic core of habeas, and Lord Mansfield did not or-
der anything else.
It may well be that a collateral consequence of Somerset’s
release was that he was allowed to remain in England, but
if that is so, it was due not to the writ issued by Lord Mans-
field, but to English law regarding entitlement to reside in
the country. At the time, England had nothing like modern
immigration restrictions. As late as 1816, the word “depor-
tation” apparently “was not to be found in any English dic-
——————
17 Respondent cites a secondary source, which in turn cites to the Na-
tional Archives in London. See Brief for Respondent 27 (citing Halliday
236).
18 Whether the founding generation understood habeas relief more
broadly than described by Blackstone, Justice Story, and our prior cases,
see supra, at 12, cannot be settled by a single case or even a few obscure
and possibly aberrant cases. And in any event, what is said here about
Murray’s case provides little support for respondent’s position. In 1677,
we are told, Murray was imprisoned in England so that he could be “ ‘sent
into Scotland’ ” for a criminal trial, but the King’s Bench twice issued a
writ of habeas corpus requiring his release. Brief for Respondent 27
(quoting Halliday 236). Putting aside the “delicate” relationship between
England and Scotland at the time, Boumediene, 553 U. S., at 749, issu-
ance of a writ to secure the release of a person held in pretrial custody is
far afield from what respondent wants here.
Cite as: 591 U. S. ____ (2020) 19
Opinion of the Court
tionary.” The Use of the Crown’s Power of Deportation Un-
der the Aliens Act, 1793–1826, in J. Dinwiddy, Radicalism
and Reform in Britain, 1780–1850, p. 150, n. 4 (1992); see
also, e.g., Craies, The Right of Aliens To Enter British Ter-
ritory, 6 L. Q. Rev. 27, 35 (1890) (“England was a complete
asylum to the foreigner who did not offend against its
laws”); Haycraft, Alien Legislation and the Prerogative of
the Crown, 13 L. Q. Rev. 165, 180 (1897) (“There do not ap-
pear to have been any transactions in Parliament or in the
[Crown’s] Privy Council directly affecting [deportation]
from the time of Elizabeth [I] to that of George III”).19
For a similar reason, respondent cannot find support in
early 19th-century American cases in which deserting for-
eign sailors used habeas to obtain their release from the
custody of American officials. In none of the cases involving
deserters that have been called to our attention did the
court order anything more than simple release from cus-
tody. As noted, Justice Story ordered a sailor’s release into
the custody of his ship’s master. See Ex parte D’Olivera,
7 F. Cas., at 854. Other decisions, while ordering the re-
lease of detained foreign deserters because no statute au-
thorized detention, chafed at having to order even release.
See Case of the Deserters from the British Frigate L’Afri-
caine, 3 Am. L. J. & Misc. Repertory 132, 135–136 (Md.
1810) (reporting judge’s statement “that he never would in-
terfere to prevent” the British consul himself from detain-
ing British deserters); Case of Hippolyte Dumas, 2 Am. L.
J. & Misc. Repertory 86, 87 (Pa. 1809) (noting “inconven-
ience” that U. S. law did not discourage desertion of foreign
sailors); Commonwealth v. Holloway, 1 Serg. & Rawle 392,
396 (Pa. 1815) (opinion of Tilghman, C. J.) (same); id., at
——————
19 This regime lasted until after 1789, when the Aliens Act of 1793 au-
thorized justices of the peace to imprison “without bail or mainprize” (i.e.,
bond) any alien found without a passport, who could then be “sen[t] out
of th[e] realm.” An Act for Regulating Immigration into Great Britain,
33 Geo. III, ch. 4, §§11, 29.
20 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
397 (opinion of Yeates, J.) (same). These cases thus do not
contemplate the quite different relief that respondent asks
us to sanction here.
In these cases, as in Somerset, it may be that the released
petitioners were able to remain in the United States as a
collateral consequence of release, but if so, that was due not
to the writs ordering their release, but to U. S. immigration
law or the lack thereof. These decisions came at a time
when an “open door to the immigrant was the . . . federal
policy.” Harisiades v. Shaughnessy, 342 U. S. 580, 588,
n. 15 (1952); see also St. Cyr, 533 U. S., at 305 (first immi-
gration regulation enacted in 1875). So release may have
had the side effect of enabling these individuals to remain
in this country, but that is beside the point.
The relief that a habeas court may order and the collat-
eral consequences of that relief are two entirely different
things. Ordering an individual’s release from custody may
have the side effect of enabling that person to pursue all
sorts of opportunities that the law allows. For example, re-
lease may enable a qualified surgeon to operate on a pa-
tient; a licensed architect may have the opportunity to de-
sign a bridge; and a qualified pilot may be able to fly a
passenger jet. But a writ of habeas could not be used to
compel an applicant to be afforded those opportunities or as
a means to obtain a license as a surgeon, architect, or pilot.
Similarly, while the release of an alien may give the alien
the opportunity to remain in the country if the immigration
laws permit, we have no evidence that the writ as it was
known in 1789 could be used to require that aliens be per-
mitted to remain in a country other than their own, or as a
means to seek that permission.
Respondent’s final examples involve international extra-
dition, but these cases are no more pertinent than those al-
ready discussed. For one thing, they post-date the founding
era. England was not a party to any extradition treaty in
1789, and this country’s first extradition treaty was the Jay
Cite as: 591 U. S. ____ (2020) 21
Opinion of the Court
Treaty of 1794. See 1 J. Moore, Extradition and Interstate
Rendition §§7, 78, pp. 10, 89 (1891). In any event, extradi-
tion cases, similar to the deserter cases, illustrate nothing
more than the use of habeas to secure release from custody
when not in compliance with the extradition statute and
relevant treaties. As noted by a scholar on whose work re-
spondent relies, these cases “examine[d] the lawfulness of
magistrates’ decisions permitting the executive to detain al-
iens.” Neuman, Habeas Corpus, Executive Detention, and
the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998).
In these cases, as in all the others noted above, habeas was
used “simply” to seek release from allegedly unlawful de-
tention. Benson v. McMahon, 127 U. S. 457, 463 (1888).
See also, e.g., In re Stupp, 23 F. Cas. 296, 303 (No. 13,563)
(CC SDNY 1875).20
Despite pages of rhetoric, the dissent is unable to cite a
single pre-1789 habeas case in which a court ordered relief
that was anything like what respondent seeks here. The
——————
20 Amici supporting respondent make an additional argument. They
contend that “[i]n eighteenth century practice, the authority of English
judges to review habeas petitions was not constrained by past decisions”
and that these judges felt free to innovate in order to ensure that justice
was done. Legal Historians Brief 5–6. But the role of federal courts un-
der our Constitution is very different from that of those English judges.
The English judges “were considered agents of the Crown, designed to
assist the King in the exercise of his power.” Boumediene, 553 U. S., at
740. The court with primary habeas jurisdiction, after all, was called the
King’s Bench, on which the King “was theoretically always present.”
Halliday & White, The Suspension Clause: English Text, Imperial Con-
texts, and American Implications, 94 Va. L. Rev. 575, 594, 598, and n. 49
(2008). Habeas was an exercise of the King’s prerogative “to have an
account . . . why the liberty of any of his subjects is restrained.” 2 J.
Story, Commentaries on the Constitution of the United States §1335,
p. 207 (1833); accord, Legal Historians Brief 5–7. In our federal courts,
by contrast, the scope of habeas has been tightly regulated by statute,
from the Judiciary Act of 1789 to the present day, and precedent is as
binding in a habeas case as in any other. See, e.g., Jenkins v. Hutton,
582 U. S. ___, ___ (2017) (per curiam) (slip op., at 4).
22 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
dissent instead contends that “the Suspension Clause in-
quiry does not require a close (much less precise) factual
match with historical habeas precedent,” post, at 11, and
then discusses cases that are not even close to this one. The
dissent reveals the true nature of its argument by suggest-
ing that there are “inherent difficulties [in] a strict original-
ist approach in the habeas context because of, among other
things, the dearth of reasoned habeas decisions at the
founding.” Ibid. But respondent does not ask us to hold
that the Suspension Clause guarantees the writ as it might
have evolved since the adoption of the Constitution. On the
contrary, as noted at the outset of this discussion, he rests
his argument on “the writ as it existed in 1789.” Brief for
Respondent 26, n. 12.
What the dissent merely implies, one concurring opinion
states expressly, arguing that the scope of the writ guaran-
teed by the Suspension Clause “may change ‘depending
upon the circumstances’ ” and thus may allow certain aliens
to seek relief other than release. Post, at 3 (BREYER, J.,
concurring in judgment) (quoting Boumediene, 553 U. S., at
779). But that is not respondent’s argument, and as a gen-
eral rule “we rely on the parties to frame the issues for de-
cision and assign to courts the role of neutral arbiter of mat-
ters the parties present.” United States v. Sineneng-Smith,
590 U. S. ___, ___ (2020) (slip op., at 3) (internal quotation
marks omitted). In any event, the concurrence’s snippets of
quotations from Boumediene are taken entirely out of con-
text. They relate to the question whether the statutory re-
view procedures for Guantanamo detainees seeking release
from custody provided an adequate substitute for a habeas
petition seeking release. See infra, at 32–33. They do not
suggest that any habeas writ guaranteed by the Suspension
Clause permits a petitioner to obtain relief that goes far be-
Cite as: 591 U. S. ____ (2020) 23
Opinion of the Court
yond the “core” of habeas as “a remedy for unlawful execu-
tive detention.” Munaf, 553 U. S., at 693.21
B
We now proceed to consider the second body of case law
on which respondent relies, decisions of this Court during
the “finality era,” which takes its name from a feature of the
Immigration Act of 1891 making certain immigration deci-
sions “final.” Although respondent claims that his argu-
ment is supported by “the writ as it existed in 1789,” Brief
for Respondent 26, n. 12, his argument focuses mainly on
this body of case law, which began a century later. These
cases, he claims, held that “the Suspension Clause man-
dates a minimum level of judicial review to ensure that the
——————
21 This concurrence imagines three horrible possibilities that it fears
could come to pass unless we interpret the Suspension Clause to protect
the right to some undefined category of relief beyond release from cus-
tody. See post, at 2 (opinion of BREYER, J.). But its interpretation is nei-
ther necessary nor obviously sufficient to prevent the possibilities it
fears. First, if a citizen were detained for deportation, today’s opinion
would not prevent the citizen from petitioning for release. Second, if re-
spondent’s “procedural” claims do not merit habeas review, as the con-
currence concludes, post, at 8, it is not clear why habeas should help the
concurrence’s hypothetical alien whose credible-fear claim was rejected
based on forged evidence. Both respondent and this hypothetical alien
assert procedural irregularities. Does the availability of habeas review
depend on a judge’s view of the severity of the irregularity asserted? Fi-
nally, there is the hypothetical alien denied asylum on the ground that
Judaism is not a religion. Such a decision would of course be ridiculous,
but why it would not raise a question of “brute fac[t]” that falls outside
the concurrence’s interpretation of the Suspension Clause, post, at 5, is
again not clear.
Whatever may be said about the concurrence’s hypotheticals, it is pos-
sible to imagine all sorts of abuses not even remotely related to unau-
thorized executive detention that could be imposed on people in this
country if the Constitution allowed Congress to deprive the courts of any
jurisdiction to entertain claims regarding such abuses. If that were to
happen, it would no doubt be argued that constitutional provisions other
than the Suspension Clause guaranteed judicial review. We have no oc-
casion to consider such arguments here.
24 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
Executive complies with the law in effectuating removal.”
Id., at 11–12. The Ninth Circuit also relied heavily on these
cases and interpreted them to “suggest that the Suspension
Clause requires review of legal and mixed questions of law
and fact related to removal orders.” 917 F. 3d, at 1117.
This interpretation of the “finality era” cases is badly mis-
taken. Those decisions were based not on the Suspension
Clause but on the habeas statute and the immigration laws
then in force. The habeas statute in effect during this time
was broad in scope. It authorized the federal courts to re-
view whether a person was being held in custody in viola-
tion of any federal law, including immigration laws. Thus,
when aliens claimed that they were detained in violation of
immigration statutes, the federal courts considered
whether immigration authorities had complied with those
laws. This, of course, required that the immigration laws
be interpreted, and at the start of the finality era, this Court
interpreted the 1891 Act’s finality provision to block review
of only questions of fact. Accordingly, when writs of habeas
corpus were sought by aliens who were detained on the
ground that they were not entitled to enter this country, the
Court considered whether, given the facts found by the im-
migration authorities, the detention was consistent with
applicable federal law. But the Court exercised that review
because it was authorized to do so by statute. The decisions
did not hold that this review was required by the Suspen-
sion Clause.
In this country, the habeas authority of federal courts has
been addressed by statute from the very beginning. The
Judiciary Act of 1789, §14, 1 Stat. 82, gave the federal
courts the power to issue writs of habeas corpus under spec-
ified circumstances, but after the Civil War, Congress en-
acted a much broader statute. That law, the Habeas Cor-
pus Act of 1867, provided that “the several courts of the
United States . . . shall have power to grant writs of habeas
corpus in all cases where any person may be restrained of
Cite as: 591 U. S. ____ (2020) 25
Opinion of the Court
his or her liberty in violation of the constitution, or of any
treaty or law of the United States.” Judiciary Act of Feb. 5,
1867, §1, 14 Stat. 385. The Act was “of the most compre-
hensive character,” bringing “within the habeas corpus ju-
risdiction of every court and of every judge every possible
case of privation of liberty contrary” to federal law.
Ex parte McCardle, 6 Wall. 318, 325–326 (1868). This ju-
risdiction was “impossible to widen.” Id., at 326; see Fay v.
Noia, 372 U. S. 391, 415 (1963) (noting the Act’s “expansive
language” and “imperative tone”). The 1867 statute, unlike
the current federal habeas statute, was not subject to re-
strictions on the issuance of writs in immigration matters,
and in United States v. Jung Ah Lung, 124 U. S. 621 (1888),
the Court held that an alien in immigration custody could
seek a writ under that statute. Id., at 626. This provided
the statutory basis for the writs sought in the finality era
cases.
The Immigration Act of 1891, enacted during one of the
country’s great waves of immigration, required the exclu-
sion of certain categories of aliens and established proce-
dures for determining whether aliens fell within one of
those categories. The Act required the exclusion of “idiots,
insane persons, paupers or persons likely to become a public
charge,” persons with infectious diseases, persons with con-
victions for certain crimes, some individuals whose passage
had been paid for by a third party, and certain laborers. Act
of Mar. 3, 1891, ch. 551, §1, 26 Stat. 1084. Inspection offic-
ers were authorized to board arriving vessels and inspect
any aliens on board. §8, id., at 1085. And, in the provision
of central importance here, the Act provided that “[a]ll de-
cisions made by the inspection officers or their assistants
touching the right of any alien to land, when adverse to
such right, shall be final unless appeal be taken to the su-
perintendent of immigration, whose action shall be subject
to review by the Secretary of the Treasury.” Ibid. Later
26 DEPARTMENT OF HOMELAND SECURITY v.
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Opinion of the Court
immigration Acts, which remained in effect until 1952,22
contained similar provisions. See Act of 1894, 28 Stat. 390;
Immigration Act of 1907, §25, 34 Stat. 907; Immigration Act
of 1917, §17, 39 Stat. 887.
The first of the finality era cases, Nishimura Ekiu v.
United States, 142 U. S. 651 (1892), required the Court to
address the effect of the 1891 Act’s finality provision in a
habeas case. Nishimura Ekiu is the cornerstone of respond-
ent’s argument regarding the finality era cases, so the opin-
ion in that case demands close attention.
The case involved an alien who was detained upon arrival
based on the immigration inspector’s finding that she was
liable to become a public charge. Seeking to be released,
the alien applied to the Circuit Court for a writ of habeas
corpus and argued that the 1891 Act, if construed to give
immigration authorities the “exclusive authority to deter-
mine” her right to enter, would violate her constitutional
right to the writ of habeas corpus and her right to due pro-
cess. Id., at 656 (statement of the case). The Circuit Court
refused to issue the writ, holding that the determination of
the inspector of immigration was not subject to review, and
the alien then appealed.
This Court upheld the denial of the writ. The Court in-
terpreted the 1891 Act to preclude judicial review only with
respect to questions of fact. Id., at 660. And after inter-
preting the 1891 Act in this way, the Court found that “the
act of 1891 is constitutional.” Id., at 664.
The Court’s narrow interpretation of the 1891 Act’s final-
ity provision meant that the federal courts otherwise re-
tained the full authority granted by the Habeas Corpus Act
of 1867 to determine whether an alien was detained in vio-
lation of federal law. Turning to that question, the Court
——————
22 See Shaughnessy v. Pedreiro, 349 U. S. 48, 51–52 (1955) (interpret-
ing 1952 Immigration and Nationality Act, 66 Stat. 163, to provide for
review of deportation orders).
Cite as: 591 U. S. ____ (2020) 27
Opinion of the Court
held that the only procedural rights of an alien seeking to
enter the country are those conferred by statute. “As to
such persons,” the Court explained, “the decisions of execu-
tive or administrative officers, acting within powers ex-
pressly conferred by Congress, are due process of law.” Id.,
at 660. The Court therefore considered whether the proce-
dures set out in the 1891 Act had been followed, and finding
no violation, affirmed the denial of the writ. Id., at 661–
664. What is critical for present purposes is that the Court
did not hold that the Suspension Clause imposed any limi-
tations on the authority of Congress to restrict the issuance
of writs of habeas corpus in immigration matters.
Respondent interprets Nishimura Ekiu differently. See
Brief for Respondent 13–15. As he reads the decision, the
Court interpreted the 1891 Act to preclude review of all
questions related to an alien’s entitlement to enter the coun-
try. Any other interpretation, he contends, would fly in the
face of the statutory terms. But, he maintains, the Court
held that this limitation violated the Suspension Clause ex-
cept with respect to questions of fact, and it was for this
reason that the Court considered whether the procedures
specified by the 1891 Act were followed. In other words, he
reads Nishimura Ekiu as holding that the 1891 Act’s final-
ity provision was unconstitutional in most of its applica-
tions (i.e., to all questions other than questions of fact).
This interpretation is wrong. The opinion in Nishimura
Ekiu states unequivocally that “the act of 1891 is constitu-
tional,” id., at 664, not that it is constitutional only in part.
And if there is any ambiguity in the opinion regarding the
Court’s interpretation of the finality provision, the later de-
cision in Gegiow v. Uhl, 239 U. S. 3 (1915), left no doubt.
What Nishimura Ekiu meant, Gegiow explained, was that
the immigration authorities’ factual findings were conclu-
sive (as Gegiow put it, “[t]he conclusiveness of the decisions
of immigration officers . . . is conclusiveness upon matters
of fact”) and therefore, the Court was “not forbidden by the
28 DEPARTMENT OF HOMELAND SECURITY v.
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Opinion of the Court
statute to consider” in a habeas proceeding “whether the
reasons” for removing an alien “agree with the require-
ments of the act.” 239 U. S., at 9. In light of this interpre-
tation, the Nishimura Ekiu Court had no occasion to decide
whether the Suspension Clause would have tolerated a
broader limitation, and there is not so much as a hint in the
opinion that the Court considered this question. Indeed,
the opinion never even mentions the Suspension Clause,
and it is utterly implausible that the Court would hold sub
silentio that Congress had violated that provision.
Holding that an Act of Congress unconstitutionally sus-
pends the writ of habeas corpus is momentous. See
Boumediene, 553 U. S., at 773 (noting “the care Congress
has taken throughout our Nation’s history” to avoid suspen-
sion). The Justices on the Court at the beginning of the fi-
nality era had seen historic occasions when the writ was
suspended—during the Civil War by President Lincoln and
then by Congress, and later during Reconstruction by Pres-
ident Grant. See Hamdi v. Rumsfeld, 542 U. S. 507, 563
(2004) (Scalia, J., dissenting) (discussing these events). The
suspension of habeas during this era played a prominent
role in our constitutional history. See Ex parte Merryman,
17 F. Cas. 144, 151–152 (No. 9,487) (CC Md. 1861) (Taney,
C. J.); Ex parte Milligan, 4 Wall. 2, 116, 131 (1866). (Two
of the Justices at the beginning of the finality era were on
the Court when Ex parte Milligan was decided.) The Jus-
tices knew a suspension of the writ when they saw one, and
it is impossible to believe that the Nishimura Ekiu Court
identified another occasion when Congress had suspended
the writ and based its decision on the Suspension Clause
without even mentioning that provision.
The dissent’s interpretation of Nishimura Ekiu is differ-
ent from respondent’s. According to the dissent, Nishimura
Ekiu interpreted the 1891 Act as it did based on the doc-
trine of constitutional avoidance. See post, at 22. This
reading has no support in the Court’s opinion, which never
Cite as: 591 U. S. ____ (2020) 29
Opinion of the Court
mentions the Suspension Clause or the avoidance doctrine
and never explains why the Clause would allow Congress
to preclude review of factual findings but nothing more.
But even if there were some basis for this interpretation, it
would not benefit respondent, and that is undoubtedly why
he has not made the argument. IIRIRA unequivocally bars
habeas review of respondent’s claims, see §1252(e)(2), and
he does not argue that it can be read any other way. The
avoidance doctrine “has no application in the absence of am-
biguity.” Warger v. Shauers, 574 U. S. 40, 50 (2014) (inter-
nal quotation marks and ellipsis omitted). Thus, if Nishi-
mura Ekiu’s interpretation were based on constitutional
avoidance, it would still not answer the interpretive ques-
tion here.
When we look to later finality era cases, any suggestion
of a Suspension Clause foundation becomes even less plau-
sible. None of those decisions mention the Suspension
Clause or even hint that they are based on that provision,
and these omissions are telling. On notable occasions dur-
ing that time, the writ was suspended—in the Philippines
in 190623 and Hawaii in 1941.24 During World War II, the
Court held that “enemy aliens” could utilize habeas “unless
there was suspension of the writ.” In re Yamashita, 327
U. S. 1, 9 (1946). And the Court invoked the Suspension
Clause in holding that the Executive lacked authority to in-
tern a Japanese-American citizen. See Ex parte Endo, 323
U. S. 283, 297–299 (1944). If the Justices during that time
had thought that the Suspension Clause provided the au-
thority they were exercising in the many cases involving
habeas petitions by aliens detained prior to entry, it is hard
——————
23 While the Philippines was a Territory, its government suspended ha-
beas to deal with “ ‘certain organized bands’ ” of rebels. Fisher v. Baker,
203 U. S. 174, 179–181 (1906) (quoting resolution).
24 The Governor of Hawaii suspended habeas, with President Roose-
velt’s approval, after the attack on Pearl Harbor. See Duncan v. Kahan-
amoku, 327 U. S. 304, 307–308, 324 (1946).
30 DEPARTMENT OF HOMELAND SECURITY v.
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Opinion of the Court
to believe that this important fact would have escaped men-
tion.
Respondent suggests that Nishimura Ekiu cannot have
interpreted the 1891 Act’s finality provision to apply only to
factual questions because the statutory text categorically
bars all review. The important question here, however, is
what the Court did in Nishimura Ekiu, not whether its in-
terpretation was correct, and in any event, there was a rea-
sonable basis for the Court’s interpretation.
The determinations that the immigration officials were
required to make under the 1891 Act were overwhelmingly
factual in nature. The determination in Nishimura’s case—
that she was likely to become a public charge—seems to
have been a pure question of fact, and the other grounds for
exclusion under the Act involved questions that were either
solely or at least primarily factual in nature.
If we were now called upon to determine the meaning of
a provision like the finality provision in the 1891 Act, our
precedents would provide the basis for an argument in fa-
vor of the interpretation that the Nishimura Ekiu Court
reached. The presumption in favor of judicial review, see,
e.g., Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020)
(slip op., at 6); Nasrallah v. Barr, 590 U. S. ___, ___–___
(2020) (slip op., at 7–9), could be invoked. So could the rule
that “[i]mplications from statutory text or legislative his-
tory are not sufficient to repeal habeas jurisdiction.” St.
Cyr, 533 U. S., at 299; accord, Ex parte Yerger, 8 Wall. 85,
105 (1869). Thus, respondent’s interpretation of the deci-
sion in Nishimura Ekiu is wrong, and the same is true of
his understanding of the later finality era cases.
Rather than relying on the Suspension Clause, those
cases simply involved the exercise of the authority con-
ferred by the habeas statute then in effect. This was true
of Nishimura Ekiu, Gegiow, and every other finality era
case that respondent cites in support of his Suspension
Clause argument. See, e.g., Gonzales v. Williams, 192 U. S.
Cite as: 591 U. S. ____ (2020) 31
Opinion of the Court
1 (1904); Yee Won v. White, 256 U. S. 399 (1921); Tod v.
Waldman, 266 U. S. 113 (1924); United States ex rel.
Polymeris v. Trudell, 284 U. S. 279 (1932); United States
ex rel. Johnson v. Shaughnessy, 336 U. S. 806 (1949);
United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537(1950); Shaughnessy v. United States ex rel. Mezei, 345
U. S. 206 (1953); United States ex rel. Accardi v. Shaugh-
nessy, 347 U. S. 260 (1954). Some finality era cases pre-
sented pure questions of law, while others involved the ap-
plication of a legal test to particular facts. At least one
involved an alien who had entered illegally. See id., at 262.
But none was based on the Suspension Clause. No majority
opinion even mentioned the Suspension Clause.25 Indeed,
any mention of the Constitution was rare—and unhelpful
to respondent’s arguments here.26 And in all the cited cases
concerning aliens detained at entry, unlike the case now be-
fore us, what was sought—and the only relief considered—
was release. Indeed, in an early finality era case, the Court
took pains to note that it did not “express any opinion” on
whether an alien was entitled to enter. Lem Moon Sing v.
United States, 158 U. S. 538, 549 (1895).
Like the dissent, respondent makes much of certain
statements in Heikkila v. Barber, 345 U. S. 229 (1953),
which he interprets to substantiate his interpretation of
Nishimura Ekiu and the subsequent entry cases discussed
above. But he takes these statements out of context and
reads far too much into them. Heikkila was not a habeas
——————
25 In a concurrence in United States ex rel. Turner v. Williams, 194
U. S. 279 (1904), Justice Brewer stated without elaboration and without
citing any authority that the Suspension Clause prohibits Congress from
“oust[ing] the courts from the duty of inquiry respecting both law and
facts” in habeas cases. Id., at 295. No other Justice joined that opinion.
26 In Fong Yue Ting v. United States, 149 U. S. 698, 713 (1893), and
many other cases, the Court noted that the Constitution gives Congress
plenary power to set requirements for admission.
32 DEPARTMENT OF HOMELAND SECURITY v.
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Opinion of the Court
case, and the question before the Court was whether a de-
portation order was reviewable under the Administrative
Procedure Act (APA). The Court held that the order was
not subject to APA review because the Immigration Act of
1917 foreclosed “judicial review”—as opposed to review in
habeas. 345 U. S., at 234–235. Nothing in Heikkila sug-
gested that the 1891 Act had been found to be partly uncon-
stitutional, and Heikkila certainly did not address the scope
of the writ of habeas corpus in 1789.
In sum, the Court exercised habeas jurisdiction in the fi-
nality era cases because the habeas statute conferred that
authority, not because it was required by the Suspension
Clause. As a result, these cases cannot support respond-
ent’s argument that the writ of habeas corpus as it was un-
derstood when the Constitution was adopted would have al-
lowed him to claim the right to administrative and judicial
review while still in custody.
C
We come, finally, to the more recent cases on which re-
spondent relies. The most recent, Boumediene, is not about
immigration at all. It held that suspected foreign terrorists
could challenge their detention at the naval base in Guan-
tanamo Bay, Cuba. They had been “apprehended on the
battlefield in Afghanistan” and elsewhere, not while cross-
ing the border. 553 U. S., at 734. They sought only to be
released from Guantanamo, not to enter this country. See,
e.g., Brief for Petitioner Al Odah et al. in Al Odah v. United
States, decided with Boumediene v. Bush, O. T. 2007, No.
06–1196, p. 39 (arguing that “habeas contemplates but one
remedy,” “release”). And nothing in the Court’s discussion
of the Suspension Clause suggested that they could have
used habeas as a means of gaining entry. Rather, the Court
reaffirmed that release is the habeas remedy though not the
“exclusive” result of every writ, given that it is often “appro-
priate” to allow the executive to cure defects in a detention.
Cite as: 591 U. S. ____ (2020) 33
Opinion of the Court
553 U. S., at 779.
Respondent’s other recent case is St. Cyr, in which the
Court’s pertinent holding rejected the argument that cer-
tain provisions of IIRIRA and the Antiterrorism and Effec-
tive Death Penalty Act of 1996 that did not refer expressly
to habeas should nevertheless be interpreted as stripping
the authority conferred by the habeas statute. In refusing
to adopt that interpretation, the Court enlisted a quartet of
interpretive canons: “the strong presumption in favor of ju-
dicial review of administrative action,” “the longstanding
rule requiring a clear statement of congressional intent to
repeal habeas jurisdiction,” the rule that a “clear indica-
tion” of congressional intent is expected when a proposed
interpretation would push “the outer limits of Congress’
power,” and the canon of constitutional avoidance. 533
U. S., at 298–300. In connection with this final canon, the
Court observed: “Because of [the Suspension] Clause, some
‘judicial intervention in deportation cases’ is unquestiona-
bly ‘required by the Constitution.’ ” Id., at 300 (quoting
Heikkila, 345 U. S., at 235).
Respondent pounces on this statement, but like the Heik-
kila statement on which it relies, it does nothing for him.
The writ of habeas corpus as it existed at common law pro-
vided a vehicle to challenge all manner of detention by gov-
ernment officials, and the Court had held long before that
the writ could be invoked by aliens already in the country
who were held in custody pending deportation. St. Cyr re-
affirmed these propositions, and this statement in St. Cyr
does not signify approval of respondent’s very different at-
tempted use of the writ, which the Court did not consider.27
——————
27 The Government notes other distinctions between St. Cyr and this
case, including that the alien in St. Cyr raised a pure question of law,
while respondent raises at best a mixed question of law and fact. We
have no need to consider these distinctions.
34 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
IV
In addition to his Suspension Clause argument, respond-
ent contends that IIRIRA violates his right to due process
by precluding judicial review of his allegedly flawed credible-
fear proceeding. Brief for Respondent 38–45. The Ninth
Circuit agreed, holding that respondent “had a constitu-
tional right to expedited removal proceedings that con-
formed to the dictates of due process.” 917 F. 3d, at 1111,
n. 15 (internal quotation marks omitted). And the Ninth
Circuit acknowledged, ibid., that this holding conflicted
with the Third Circuit’s decision upholding §1252(e)(2) on
the ground that applicants for admission lack due process
rights regarding their applications, see Castro, 835 F. 3d, at
445–446. Since due process provided an independent
ground for the decision below and since respondent urges
us to affirm on this ground, it is hard to understand the dis-
sent’s argument that the due process issue was not “seri-
ously in dispute below” or that it is somehow improper for
us to decide the issue. Post, at 34.
Nor is the dissent correct in defending the Ninth Circuit’s
holding. That holding is contrary to more than a century of
precedent. In 1892, the Court wrote that as to “foreigners
who have never been naturalized, nor acquired any domicil
or residence within the United States, nor even been admit-
ted into the country pursuant to law,” “the decisions of ex-
ecutive or administrative officers, acting within powers ex-
pressly conferred by Congress, are due process of law.”
Nishimura Ekiu, 142 U. S., at 660. Since then, the Court
has often reiterated this important rule. See, e.g., Knauff,
338 U. S., at 544 (“Whatever the procedure authorized by
Congress is, it is due process as far as an alien denied entry
is concerned”); Mezei, 345 U. S., at 212 (same); Landon v.
Plasencia, 459 U. S. 21, 32 (1982) (“This Court has long held
that an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights regard-
ing his application, for the power to admit or exclude aliens
Cite as: 591 U. S. ____ (2020) 35
Opinion of the Court
is a sovereign prerogative”).
Respondent argues that this rule does not apply to him
because he was not taken into custody the instant he at-
tempted to enter the country (as would have been the case
had he arrived at a lawful port of entry). Because he suc-
ceeded in making it 25 yards into U. S. territory before he
was caught, he claims the right to be treated more favora-
bly. The Ninth Circuit agreed with this argument.
We reject it. It disregards the reason for our century-old
rule regarding the due process rights of an alien seeking
initial entry. That rule rests on fundamental propositions:
“[T]he power to admit or exclude aliens is a sovereign pre-
rogative,” id., at 32; the Constitution gives “the political de-
partment of the government” plenary authority to decide
which aliens to admit, Nishimura Ekiu, 142 U. S., at 659;
and a concomitant of that power is the power to set the pro-
cedures to be followed in determining whether an alien
should be admitted, see Knauff, 338 U. S., at 544.
This rule would be meaningless if it became inoperative
as soon as an arriving alien set foot on U. S. soil. When an
alien arrives at a port of entry—for example, an interna-
tional airport—the alien is on U. S. soil, but the alien is not
considered to have entered the country for the purposes of
this rule. On the contrary, aliens who arrive at ports of en-
try—even those paroled elsewhere in the country for years
pending removal—are “treated” for due process purposes
“as if stopped at the border.” Mezei, 345 U. S., at 215; see
Leng May Ma v. Barber, 357 U. S. 185, 188–190 (1958);
Kaplan v. Tod, 267 U. S. 228, 230–231 (1925).
The same must be true of an alien like respondent. As
previously noted, an alien who tries to enter the country il-
legally is treated as an “applicant for admission,”
§1225(a)(1), and an alien who is detained shortly after un-
lawful entry cannot be said to have “effected an entry,”
Zadvydas v. Davis, 533 U. S. 678, 693 (2001). Like an alien
36 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
detained after arriving at a port of entry, an alien like re-
spondent is “on the threshold.” Mezei, 345 U. S., at 212.
The rule advocated by respondent and adopted by the Ninth
Circuit would undermine the “sovereign prerogative” of
governing admission to this country and create a perverse
incentive to enter at an unlawful rather than a lawful loca-
tion. Plasencia, 459 U. S., at 32.
For these reasons, an alien in respondent’s position has
only those rights regarding admission that Congress has
provided by statute. In respondent’s case, Congress pro-
vided 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).
Because the Due Process Clause provides nothing more, it
does not require review of that determination or how it was
made. As applied here, therefore, §1252(e)(2) does not vio-
late due process.28
*
* *
Because the Ninth Circuit erred in holding that
§1252(e)(2) violates the Suspension Clause and the Due
Process Clause, we reverse the judgment and remand the
case with directions that the application for habeas corpus
be dismissed.
It is so ordered.
——————
28 Although respondent, during his interviews with immigration offi-
cials, does not appear to have provided any information tying the assault
he suffered at the hands of those who arrived at his home in a van to
persecution on the basis of ethnicity or political opinion, his counseled
petition offers details about “white va[n]” attacks against Tamils in
Sri Lanka. App. 25–26 (internal quotation marks omitted). As now por-
trayed, his assault resembles those incidents. Department officials and
immigration judges may reopen cases or reconsider decisions, see 8 CFR
§§103.5(a)(1), (5), and 1003.23(b)(1), and the Executive always has dis-
cretion not to remove, see AAADC, 525 U. S., at 483–484.
Cite as: 591 U. S. ____ (2020) 1
THOMAS, J., concurring
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 THOMAS, concurring.
I join the Court’s opinion, which correctly concludes that
respondent’s Suspension Clause argument fails because he
does not seek a writ of habeas corpus. I write separately to
address the original meaning of the Suspension Clause,
which guarantees that “[t]he Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Re-
bellion or Invasion the public Safety may require it.” Art.
I, §9, cl. 2. The Founders appear to have understood “[t]he
Privilege of the Writ of Habeas Corpus” to guarantee free-
dom from discretionary detention, and a “suspen[sion]” of
that privilege likely meant a statute granting the executive
the power to detain without bail or trial based on mere sus-
picion of a crime or dangerousness. Thus, the expedited re-
moval procedure in the Illegal Immigration Reform and Im-
migrant Responsibility Act of 1996, 110 Stat. 3009–546, is
likely not a suspension.1
I
The writ of habeas corpus began as a prerogative writ in
the Court of King’s Bench in the 16th century. J. Baker, An
Introduction to English Legal History 157 (5th ed. 2019).
——————
1 I express no view on the question whether respondent is even entitled
to the privilege of the writ as an unadmitted alien.
2 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
THOMAS, J., concurring
Over time, however, it came to be understood both as a right
to be free from arbitrary detention and as a procedural writ.
By the end of the 16th century, the English connected the
common-law writ of habeas corpus to liberty. Specifically,
it was associated with the guarantee in Magna Carta that
“[n]o free person (Nullus liber homo) shall be taken or im-
prisoned, or disseised or outlawed or exiled, or in any way
destroyed . . . except by the lawful judgment of his peers or
by the law of the land.” Id., at 157, n. 76, 506. Perhaps
most prominently, Edward Coke wrote in his Institutes
that “if a man be taken, or committed to prison contra legem
terrae, against the Law of the land,” then “[h]e may have an
habeas corpus.” The Second Part of the Institutes of the
Laws of England 55 (6th ed. 1681). For Coke, and for the
many English (and later Americans) who read his work,
“the writ was treated as an aspect of the Charter’s guar-
anty.” D. Meador, Habeas Corpus and Magna Carta: Dual-
ism of Power and Liberty 22 (1966).
This association between habeas corpus and freedom
from discretionary detention deepened after 1679 with the
Habeas Corpus Act, also known as An Act for the better se-
cureing the Liberty of the Subject and for Prevention of Im-
prisonments beyond the Seas. The statute sought to ad-
dress “great Delayes” in “criminall or supposed criminall
Matters.” 31 Car. 2, ch. 2. It required an officer served with
a writ of habeas corpus to produce the prisoner within three
days in “any such criminall or supposed criminall Matters.”
Ibid. It also guaranteed bail to prisoners in cases of felony
or high treason if they were not tried within one term of
court. Ibid. To protect these rights, Parliament created a
special statutory remedy: All writs under the Habeas Cor-
pus Act were marked as issuing pursuant to the statute.
Ibid.; P. Halliday, Habeas Corpus: From England to Empire
320 (2010).
Parliament passed the Habeas Corpus Act to curb the
power of King Charles II, but it nonetheless came to be seen
Cite as: 591 U. S. ____ (2020) 3
THOMAS, J., concurring
as a protection for liberty, not just an assertion of the pow-
ers of Parliament over the Crown. Henry Care, in the 1774
edition of his widely read treatise English Liberties, com-
mented that “before this statute [the common-law writ of
habeas corpus] was rendered far less useful than it ought
to be, partly by the Judges pretending a power to grant or
deny the said writ at their pleasure, in many cases; and es-
pecially by the ill practices of Sheriffs and Goalers, by put-
ting the prisoner to the charge and trouble of . . . a second
and third writ, before they would obey the first.” 1 English
Liberties, or the Free-born Subject’s Inheritance 195. The
Habeas Corpus Act, he concluded, “provides thus for our lib-
erty.” Id., at 198. William Blackstone put it even more
sweepingly, writing that the Habeas Corpus Act “is fre-
quently considered as another magna carta.” 3 Commen-
taries on the Laws of England 135 (1770).
II
The Founders inherited this understanding of habeas
corpus. And they enshrined it in the Suspension Clause,
which they understood to protect a substantive right.
The language of the Suspension Clause evinces this un-
derstanding. The Clause itself does not authorize courts to
issue writs of habeas corpus. INS v. St. Cyr, 533 U. S. 289,
337 (2001) (Scalia, J., dissenting); Ex parte Bollman, 4
Cranch 75, 94 (1807). Nor does it refer simply to the writ
of habeas corpus. Rather, it protects the privilege of the
writ of habeas corpus. The word “privilege” was “used in-
terchangeably with the words ‘rights,’ ‘liberties,’ and ‘free-
doms,’ and had been since the time of Blackstone.” McDon-
ald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J.,
concurring in part and concurring in judgment). By using
this term, the Framers appear to have had a substantive
right in mind.
Ratification debates reflect this understanding as well.
Future Supreme Court Justice James Iredell said in the
4 DEPARTMENT OF HOMELAND SECURITY v.
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THOMAS, J., concurring
North Carolina convention that, “[b]y the privileges of the
habeas corpus, no man can be confined without inquiry; and
if it should appear that he has been committed contrary to
law, he must be discharged.” 4 Debates in the Several State
Conventions 171 (J. Elliot ed. 1891). Signer of the Consti-
tution James McHenry told the Maryland House of Dele-
gates that “[p]ublic safety may require a suspension of the
Ha[beas] Corpus in cases of necessity: when those cases do
not exist, the virtuous Citizen will ever be protected in his
opposition to power.” 11 Documentary History of the Rati-
fication of the Constitution 80, 84 (J. Kaminski et al. eds.
2015) (Documentary History).
This understanding is echoed in statements that the Con-
stitution protects the Habeas Corpus Act, the writ of habeas
corpus, or simply “the habeas corpus,” all referring to a sub-
stantive right. Alexander Hamilton wrote in The Federalist
No. 83 that “the habeas corpus act” was “provided for in the
most ample manner in the plan of the convention.” The
Federalist No. 83, p. 499 (C. Rossiter ed. 1961). Again in
No. 84, he wrote that the Constitution “establish[ed] the
writ of habeas corpus.” Id., No. 84, at 511. In the Pennsyl-
vania ratifying convention, Jasper Yeates said that the Sus-
pension Clause “direct[ed] that the privilege of the habeas
corpus act shall not be suspended except in times of imme-
diate danger.” 2 Documentary History 434–435 (M. Jensen
ed. 1976). In Virginia, Governor Edmund Randolph—a
signer and future Attorney General—argued that “the ha-
beas corpus is at least on as secure and good a footing as it
is in England” because “[t]hat privilege is secured here by
the Constitution.” 9 id., at 1099 (J. Kaminski & G. Saladino
eds. 1990). Luther Martin of Maryland wrote that “the gen-
eral government is to have a power of suspending the ha-
beas corpus act, in cases of rebellion or invasion.” Genuine
Information VIII, reprinted in 15 id., at 434 (J. Kaminski &
G. Saladino eds. 1984). In Massachusetts, Theophilius Par-
sons “made a Loud Speech on the Habeas Corpus act that
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THOMAS, J., concurring
it will not be in the power of Gov[ern]ment to suspend the
act only in time of war.” 7 id., at 1813 (J. Kaminski & G.
Saladino eds. 2001). Other speakers and writers made sim-
ilar references. See A. Tyler, Habeas Corpus in Wartime
132–133 (2017) (collecting examples). In sum, it seems that
the founding generation viewed the privilege of the writ of
habeas corpus as a freedom from arbitrary detention.2
III
The remaining question is what it means for “[t]he Privi-
lege of the Writ of Habeas Corpus” to “be suspended.” U. S.
Const., Art. I, §9, cl. 2. At the founding, suspension was a
well-known term that meant “a [t]emporal [s]top of a
[m]an’s [r]ight.” N. Bailey, An Universal Etymological Eng-
lish Dictionary (22d ed. 1770); see St. Cyr, 533 U. S., at 337–
338 (Scalia, J., dissenting). In the context of habeas corpus,
——————
2 None of this is to say that the writ of habeas corpus involved a wide-
ranging, ever-changing inquiry. As the Court today reaffirms, “the scope
of habeas has been tightly regulated by statute, from the Judiciary Act
of 1789 to the present day.” Ante, at 21, n. 20. A writ of habeas corpus
was “in the nature of a writ of error, to examine the legality of the com-
mitment.” Ex parte Watkins, 3 Pet. 193, 202 (1830) (Marshall, C. J.).
When an executive detained someone without trial, it allowed a court to
“examine into [the] validity” of “the reason for” commitment. 3 W. Black-
stone, Commentaries on the Laws of England 133 (1770). In cases of
detention pursuant to the judgment of a court, “a prisoner seeking a writ
of habeas corpus could challenge only the jurisdiction of the court that
had rendered the judgment under which he was in custody.” Wright v.
West, 505 U. S. 277, 285 (1992) (opinion of THOMAS, J.). In both contexts,
the writ “played only a procedural role: It issued as of right when a pris-
oner showed probable cause to believe he was being held illegally . . . and
obligated the warden to file a ‘return’ identifying the grounds of impris-
onment.” Jennings v. Stephens, 574 U. S. 271, 285 (2015) (THOMAS, J.,
dissenting). When the writ of habeas corpus was granted, it “decided
nothing except that there was a case calling for an answer by the gaoler.”
Goddard, A Note on Habeas Corpus, 65 L. Q. Rev. 30, 34 (1949). “After
reviewing the reason so returned, the court could release, bail, or remand
the prisoner as appropriate.” J. Baker, An Introduction to English Legal
History 157 (5th ed. 2019).
6 DEPARTMENT OF HOMELAND SECURITY v.
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THOMAS, J., concurring
it appears to have specifically meant a grant of authority to
the executive to detain without bail or trial based on suspi-
cion of a crime or dangerousness.
The English understood the term this way. Blackstone
called it “the happiness of [the English] constitution” that
“the parliament only, or legislative power, . . . can authorize
the crown, by suspending the habeas corpus act for a short
and limited time, to imprison suspected persons without
giving any reason for so doing.” 1 Commentaries on the
Laws of England, at 136. Bills known as suspensions
granted broad power to detain based on suspicion of a
crime. For example, in 1777, Lord Germaine introduced a
bill “ ‘to empower his Majesty to secure and detain Persons
charged with, or suspected of, the Crime of High Treason
committed in North America, or on the High Seas, or the
Crime of Piracy.’ ” 19 W. Cobbett, The Parliamentary His-
tory of England 4 (1814). The bill allowed certain prisoners
to be detained “ ‘without bail or mainprize’ ”3 and prohibited
any “ ‘judge or justice of peace’ ” from “ ‘bail[ing] or try[ing]
any such person or persons, . . . any law, statute, or usage,
to the contrary in any wise notwithstanding.’ ” Id., at 5.
The text contained no mention of the Habeas Corpus Act,
but it nevertheless was referred to as a “suspension of the
Habeas Corpus Act.” Id., at 9–10. As one historian has
written, suspensions “were officially acts ‘empowering his
majesty to apprehend and detain such persons as he shall
find cause to suspect’ ” and to do so “ ‘without bail or
mainprise.’ ” Halliday, Habeas Corpus, at 248.
Americans shared a similar understanding, as evidenced
by the suspensions that States passed during the Revolu-
tionary War. “By their common terms,” these suspensions
——————
3 Mainprise or mainprize is a “writ ordering the sheriff to take . . . se-
curity . . . for the prisoner’s appearance and release the prisoner.”
Black’s Law Dictionary 1142 (11th ed. 2019).
Cite as: 591 U. S. ____ (2020) 7
THOMAS, J., concurring
“bestowed authority on state executives to arrest and de-
tain persons preventively based on suspicion of supporting
the Crown.” Tyler, Habeas Corpus in Wartime, at 111. In
1777, Massachusetts authorized the detention of “any per-
son whom the council shall deem the safety of the Common-
wealth requires should be restrained of his personal liberty,
or whose enlargement within this state is dangerous
thereto” “without bail or mainpri[s][z]e.” 1776–1777 Mass.
Acts ch. 45, §§1, 3, p. 641. Virginia similarly allowed the
Governor and council to detain anyone “whom they may
have just cause to suspect of disaffection to the independ-
ence of the United States or of attachment to their ene-
mies.” An act for giving certain powers to the governour
and council, and for punishing those who shall oppose the
execution of laws, reprinted in 10 W. Hening’s Statutes at
Large 413–414 (1822). And New York created a board with
power “to apprehend and confine or cause to be appre-
hended or confined . . . all persons whose going at large
shall in the judgment of the said commissioners or any
three of them appear dangerous to the safety of this State.”
An Act appointing commissioners for detecting and defeat-
ing conspiracies and declaring their powers (Feb. 5, 1778),
1778 N. Y. Laws ch. 3, pp. 8–9; see also An Act for consti-
tuting a Council of Safety (Oct. 11, 1777), 1777 N. J. Laws
ch. 40, §4, p. 85; An Act to Empower the Supreme Executive
Council of this Commonwealth to Provide for the Security
Thereof in Special Cases Where No Provision Is Already
Made by Law (Sept. 6, 1777), ch. 762, §2, 9 Statutes at
Large of Pennsylvania 140 (J. Mitchell & H. Flanders eds.
1903); An Act to punish certain crimes and misdemeanors,
and to prevent the growth of toryism, 1777 Md. Laws ch.
20, §7.4
——————
4 It does not appear that it was necessary to expressly mention the
availability of the writ in a suspending Act. Some States made express
reference to the writ of habeas corpus, see, e.g., ch. 762, §2, 9 Statutes at
Large of Pennsylvania 140, but many did not.
8 DEPARTMENT OF HOMELAND SECURITY v.
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THOMAS, J., concurring
Massachusetts continued using this formula for suspen-
sions under its 1780 Constitution. These suspensions are
especially probative because that Constitution contained
language similar to the Federal Suspension Clause: “The
privilege and benefit of the writ of habeas corpus shall be
enjoyed in this Commonwealth in the most free, easy,
cheap, expeditious and ample manner; and shall not be sus-
pended by the Legislature, except upon the most urgent and
pressing occasions, and for a limited time not exceeding
twelve months.” Pt. 2, ch. VI, Art. VII. In response to
Shays’ Rebellion, which gained notoriety across the United
States, Massachusetts passed “An Act for Suspending the
Privilege of the Writ of Habeas Corpus.” It provided that
“the Governor, with the advice and consent of the
Council, be and he hereby is authorised and empow-
ered . . . to command, and cause to be apprehended, and
committed in any Goal, or other safe place, within the
Commonwealth, any person or persons whatsoever,
whom the Governor and Council, shall deem the safety
of the Commonwealth requires should be restrained of
their personal liberty, or whose enlargement is danger-
ous thereto; any Law, Usage or Custom to the contrary
notwithstanding.” 1786–1787 Mass. Acts ch. 41, p.
102.
The Act also provided that “any Person who shall be appre-
hended and imprisoned, as aforesaid, shall be continued in
imprisonment, without Bail or Mainprize, until he shall be
discharged therefrom by order of the Governor, or of the
General Court.” Id., at 103; see also An Act to Suspend the
Privilege of the Writ of Habeas Corpus for Six Months (June
27, 1782), 1782–1783 Mass. Acts ch. 2, pp. 6–7. Thus, in a
jurisdiction with an analog to the Suspension Clause, a sus-
pension was a grant of power to detain without bail or trial
based on suspicion of a crime or dangerousness.
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THOMAS, J., concurring
Although the ratification debates are not especially illu-
minating on the meaning of a suspension, they provide fur-
ther support for this understanding. Luther Martin wrote
that the Government, upon “suspending the habeas corpus
act may seize upon the persons of those advocates of free-
dom, who have had virtue and resolution enough to excite
the opposition, and may imprison them during its pleas-
ure.” Genuine Information VIII, reprinted in 15 Documen-
tary History 434. Another essayist, writing in a Boston
newspaper, explained that suspension would allow “the
President, or President and Senate, as Congress shall think
proper to empower, to take up and confine for any cause, or
for any suspicion, or for no cause, perhaps any person, he or
they shall think proper. 5 id., at 712 (J. Kaminski & G.
Saladino eds. 1998).
In sum, a suspension was not necessarily an express lim-
itation on the availability of the writ of habeas corpus. Ra-
ther, it appears to have been a grant of power to detain
based on suspicion of a crime or dangerousness without bail
or trial.
IV
Under this interpretation, 8 U. S. C. §1252 likely does not
suspend the writ of habeas corpus. To be placed in expe-
dited removal, an immigration officer must “determin[e]”
that an alien is “inadmissible.” §1225(b)(1)(A)(i). That de-
termination is based in part on the alien’s lack of valid en-
try documentation and failure to satisfy a 2-year continu-
ous physical presence requirement, not on mere suspicion
or dangerousness. §§1225(b)(1)(A)(i), (iii)(II); §1182(a)(7).
An alien has the opportunity to avoid expedited removal by
demonstrating a “credible fear of persecution.”
§§1225(b)(1)(B)(iii), (v). If the alien is unsuccessful, he may
seek “[j]udicial review . . . in habeas corpus proceedings” of
“whether [he] is an alien”; “whether [he] was ordered re-
moved” under expedited removal; and “whether [he] can
10 DEPARTMENT OF HOMELAND SECURITY v.
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THOMAS, J., concurring
prove by a preponderance of the evidence that [he] is an al-
ien lawfully admitted for permanent residence, has been
admitted as a refugee . . . , or has been granted asylum” and
“such status [has not] been terminated.” §1252(e)(2).
This statute bears little resemblance to a suspension as
that term was understood at the founding. It does not allow
the executive to detain based on mere suspicion of a crime
or dangerousness. Rather, it requires a finding that the de-
tainee lacks valid documentation and is not eligible for asy-
lum. It even expressly permits habeas relief for a detainee
who does not meet certain criteria for expedited removal.
Some may wish that the Suspension Clause were
broader. Perhaps for this reason, our precedents have de-
parted from the original understanding of the Suspension
Clause. See, e.g., Boumediene v. Bush, 553 U. S. 723, 826–
850 (2008) (Scalia, J., dissenting); St. Cyr, 533 U. S., at 336–
341 (Scalia, J., dissenting). But this understanding does
contain an important guarantee of individual liberty by lim-
iting the circumstances in which Congress may give the ex-
ecutive power to detain without bail or trial based on suspi-
cion of a crime or dangerousness. In this case, that
guarantee has not been violated.
Cite as: 591 U. S. ____ (2020) 1
BREYER, J., concurring in judgment
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 BREYER, with whom JUSTICE GINSBURG joins,
concurring in the judgment.
The statute at issue here, 8 U. S. C. §1252(e)(2), sets forth
strict limits on what claims a noncitizen subject to expe-
dited removal may present in federal habeas corpus pro-
ceedings. I agree that enforcing those limits in this partic-
ular case does not violate the Suspension Clause’s
constitutional command: “The Privilege of the Writ of Ha-
beas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it.”
U. S. Const., Art. I, §9, cl. 2. But we need not, and should
not, go further.
We need not go further because the Government asked us
to decide, and we agreed to review, an issue limited to the
case before us. The question presented is “whether, as ap-
plied to respondent, Section 1252(e)(2) is unconstitutional
under the Suspension Clause.” Pet. for Cert. i (emphasis
added). All we must decide is whether, under the Suspen-
sion Clause, the statute at issue “is unconstitutional as ap-
plied to this party, in the circumstances of this case.” Chi-
cago v. Morales, 527 U. S. 41, 74 (1999) (Scalia, J.,
dissenting).
Nor should we go further. Addressing more broadly
whether the Suspension Clause protects people challenging
2 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
BREYER, J., concurring in judgment
removal decisions may raise a host of difficult questions in
the immigration context. What review might the Suspen-
sion Clause assure, say, a person apprehended years after
she crossed our borders clandestinely and started a life in
this country? Under current law, noncitizens who have
lived in the United States for up to two years may be placed
in expedited-removal proceedings, see §1225(b)(1)(A)(iii),
but Congress might decide to raise that 2-year cap (or re-
move it altogether). Does the Suspension Clause let Con-
gress close the courthouse doors to a long-term permanent
resident facing removal? In INS v. St. Cyr, 533 U. S. 289(2001), we avoided just that “serious and difficult constitu-
tional issue.” Id., at 305.
Could Congress, for that matter, deny habeas review to
someone ordered removed despite claiming to be a natural-
born U. S. citizen? The petitioner in Chin Yow v. United
States, 208 U. S. 8 (1908), and others have faced that pre-
dicament. See also §1252(e)(2)(A) (permitting, at present,
habeas review of citizenship claims). What about foreclos-
ing habeas review of a claim that rogue immigration offi-
cials forged the record of a credible-fear interview that, in
truth, never happened? Or that such officials denied a ref-
ugee asylum based on the dead-wrong legal interpretation
that Judaism does not qualify as a “religion” under govern-
ing law? Cf. Tod v. Waldman, 266 U. S. 113, 119–120
(1924) (observing that immigration officials ignored a Jew-
ish family’s claim that they were “refugees” fleeing “reli-
gious persecution”).
The answers to these and other “difficult questions about
the scope of [Suspension Clause] protections” lurk behind
the scenes here. Lozman v. Riviera Beach, 585 U. S. ___,
___ (2018) (slip op., at 10). I would therefore avoid making
statements about the Suspension Clause that sweep beyond
the principles needed to decide this case—let alone come to
conclusions about the Due Process Clause, a distinct consti-
Cite as: 591 U. S. ____ (2020) 3
BREYER, J., concurring in judgment
tutional provision that is not directly at issue here. Com-
pare ibid. (concluding that, with narrow grounds for deci-
sion available, resolving broader, more difficult questions
“must await a different case”) with ante, at 12–16 (suggest-
ing that removal is simply not the sort of “restraint” for
which the Suspension Clause guarantees a means of “secur-
ing release”), and ante, at 34–36 (addressing a separate due
process question).
As for the resolution of the dispute before us, Congress,
in my view, had the constitutional power to foreclose habeas
review of the claims that respondent has pressed in this
case. Habeas corpus, as we have said, is an “adaptable rem-
edy,” and the “precise application and scope” of the review
it guarantees may change “depending upon the circum-
stances.” Boumediene v. Bush, 553 U. S. 723, 779 (2008);
see also id., at 813 (ROBERTS, C. J., dissenting). So where
the Suspension Clause applies, the “habeas court’s role”
may prove more “extensive,” or less so, depending on the
context at issue. Id., at 780 (majority opinion). Here, even
assuming that the Suspension Clause guarantees respond-
ent some form of habeas review—which is to say, even ac-
cepting for argument’s sake that the relief respondent seeks
is “release,” contra, ante, at 22—the scope of that constitu-
tionally required review would not extend to his claims.
Two features of this case persuade me.
First, respondent’s status suggests that the constitu-
tional floor set by the Suspension Clause here cannot be
high. A Border Patrol agent apprehended respondent just
25 yards inside the border. Respondent was placed in ex-
pedited removal proceedings shortly thereafter, where he
received the same consideration for relief from removal that
Congress has afforded persons arriving at the border. Re-
spondent has never lived in, or been lawfully admitted to,
the United States.
To my mind, those are among the “circumstances” that
4 DEPARTMENT OF HOMELAND SECURITY v.
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BREYER, J., concurring in judgment
inform the “scope” of any habeas review that the Suspen-
sion Clause might guarantee respondent. Boumediene, 553
U. S., at 779. He is thus in a materially different position
for Suspension Clause purposes than the noncitizens in, for
example, Rowoldt v. Perfetto, 355 U. S. 115 (1957), United
States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954),
Bridges v. Wixon, 326 U. S. 135 (1945), and Hansen v. Haff,
291 U. S. 559 (1934). They had all lived in this country for
years. The scope of whatever habeas review the Suspension
Clause assures respondent need not be as extensive as it
might for someone in that position.
Second, our precedents demonstrate that respondent’s
claims are of the kind that Congress may, consistent with
the Suspension Clause, make unreviewable in habeas pro-
ceedings. Even accepting respondent’s argument that our
“finality era” cases map out a constitutional minimum, see
ante, at 23–24, his claims, on the facts presented here, differ
significantly from those that we reviewed throughout this
period.
To begin, respondent concedes that Congress may elimi-
nate habeas review of factual questions in cases like this
one. See, e.g., Nishimura Ekiu v. United States, 142 U. S.
651, 660 (1892). He has thus disclaimed the “right to chal-
lenge the historical facts” found by immigration officials
during his credible-fear process. Tr. of Oral Arg. 44. But
even though respondent has framed his two primary claims
as asserting legal error, substance belies that label. Both
claims are, at their core, challenges to factual findings.
During his credible-fear interview, respondent said that
he is an ethnic Tamil from Sri Lanka and that, one day, a
group of men abducted him in a van and brutally beat him.
App. 67, 70–74. The asylum officer believed respondent’s
account, id., at 83, which respondent confirmed was his sole
basis for seeking relief, id., at 77, 79. The critical question,
then, concerned the nature of the attack: Who attacked re-
spondent and why? In written findings, the asylum officer
Cite as: 591 U. S. ____ (2020) 5
BREYER, J., concurring in judgment
concluded that it was “unknown who these individuals were
or why they wanted to harm [respondent].” Id., at 87.
Based on those findings, the asylum officer determined that
respondent had not established a credible fear of persecu-
tion or torture within the meaning of governing law. See
id., at 87, 89.
Respondent, to be sure, casts the brunt of his challenge
to this adverse credible-fear determination as two claims of
legal error. But it is the factual findings underlying that
determination that respondent, armed with strong new fac-
tual evidence, now disputes. See id., at 23–27; Brief for Pro-
fessors of Sri Lankan Politics as Amici Curiae 7–11; see also
ante, at 36, n. 28 (noting that immigration officials may re-
visit their findings in light of this additional evidence).
Respondent first asserts that the asylum officer failed to
apply—or at least misapplied—the applicable legal stand-
ard under §1225(b)(1)(B)(v), which required only a “signifi-
cant possibility” that respondent could establish entitle-
ment to relief from removal. See App. 30–32; Brief for
Respondent 6. Respondent also contends that the asylum
officer “demonstrated a fatal lack of knowledge” about con-
ditions in Sri Lanka, id., at 7, in violation of provisions re-
quiring that asylum officers consider “other facts as are
known to the officer,” §1225(b)(1)(B)(v), and have “had pro-
fessional training in country conditions,” §1225(b)(1)(E)(i).
See App. 24–26, 28–29, 31.
At the heart of both purportedly legal contentions, how-
ever, lies a disagreement with immigration officials’ find-
ings about the two brute facts underlying their credible-fear
determination—again, the identity of respondent’s attack-
ers and their motive for attacking him. Other than his own
testimony describing the attack, respondent has pointed to
nothing in the administrative record to support either of
these claims.
As to his legal-standard claim, respondent does not cite
anything affirmatively indicating that immigration officials
6 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
BREYER, J., concurring in judgment
misidentified or misunderstood the proper legal standard
under §1225(b)(1)(B)(v). Rather, he argues that their cred-
ible-fear determination was so egregiously wrong that it
simply must have rested on such a legal error. See Tr. of
Oral Arg. 46–50. But that contention rests on a refusal to
accept the facts as found by the immigration officials. Spe-
cifically, it rejects their findings that no evidence suggested
respondent was attacked by men affiliated with the Sri
Lankan Government and motivated by respondent’s Tamil
ethnicity or (as he now alleges) history of political activism.
See App. 87; see also, e.g., id., at 23–26. Respondent’s quar-
rel, at bottom, is not with whether settled historical facts
satisfy a legal standard, see Guerrero-Lasprilla v. Barr, 589
U. S. ___, ___ (2020) (slip op., at 4), but with what the his-
torical facts are.
Respondent’s country-conditions claim is much the same.
Respondent does not cite anything in the administrative
record affirmatively indicating that, contrary to
§§1225(b)(1)(B)(v) and (E)(i), immigration officials, for ex-
ample, consciously disregarded facts presented or other-
wise known to them, or that the asylum officer never re-
ceived relevant professional training. Instead, respondent
offers a similar refrain: The credible-fear determination
was so egregiously wrong that immigration officials simply
must not have known about conditions in Sri Lanka. See
Brief for Respondent 7. So this claim, too, boils down to a
factual argument that immigration officials should have
known who respondents’ attackers were and why they at-
tacked him.
Mindful that the “Constitution deals with substance, not
shadows,” Salazar v. Buono, 559 U. S. 700, 723 (2010)
(ROBERTS, C. J., concurring) (internal quotation marks
omitted), I accordingly view both claims as factual in na-
ture, notwithstanding respondent’s contrary characteriza-
tion. For that reason, Congress may foreclose habeas re-
view of these claims without running afoul of the
Cite as: 591 U. S. ____ (2020) 7
BREYER, J., concurring in judgment
Suspension Clause. See, e.g., Nishimura Ekiu, 142 U. S.,
at 660.
The other two claims of error that respondent has pressed
assert that immigration officials violated procedures re-
quired by law. He first contends that, by not asking addi-
tional questions during the credible-fear interview, the asy-
lum officer failed to elicit “all relevant and useful
information,” in violation of 8 CFR §208.30(d) (2020). See
App. 27, 31. Respondent further alleges that translation
problems arose during the interview, in violation of the asy-
lum officer’s duty under §§208.30(d)(1) and (2) to ensure
that respondent was “[a]ble to participate effectively” and
“ha[d] an understanding of the credible fear determination
process.” See App. 27–28, 31. Though both claims may rea-
sonably be understood as procedural, they may constitu-
tionally be treated as unreviewable—at least under the bor-
der-entry circumstances present in this case. See supra, at
3–4.
Respondent’s procedural claims are unlike those that we
reviewed in habeas proceedings during the finality era.
Throughout that period, the procedural claims that we ad-
dressed asserted errors that fundamentally undermined
the efficacy of process prescribed by law. See Chin Yow, 208
U. S., at 11 (observing that a noncitizen could obtain habeas
relief on procedural grounds if he was denied “an oppor-
tunity to prove his right to enter the country, as the statute
meant that he should have”). Many of our finality era cases
thus dealt with situations in which immigration officials
failed entirely to take obligatory procedural steps.
In Waldman, for example, we faulted immigration offi-
cials for making “no finding[s]” at all on potentially dispos-
itive issues, including whether the noncitizens were fleeing
religious persecution and therefore exempt from a literacy
requirement. 266 U. S., at 120. And in United States ex rel.
Johnson v. Shaughnessy, 336 U. S. 806 (1949), we re-
versed for procedural error because the noncitizen was
8 DEPARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
BREYER, J., concurring in judgment
denied outright “the independent [medical] review and
re-examination” required by then-governing law. Id., at
812; see also Accardi, 347 U. S., at 267 (faulting the Attor-
ney General for short-circuiting altogether legally pre-
scribed adjudication procedures by “dictating” an immigra-
tion decision himself ).
Respondent’s procedural claims are different. He does
not allege that immigration officials, say, denied him a
credible-fear interview or skipped a layer of intra-agency
review altogether. Nor do his allegations suggest that the
asylum officer’s questioning or the interpreter’s translation
constructively deprived him of the opportunity to establish
a credible fear; indeed, he has consistently maintained that
the information that was elicited more than sufficed. See,
e.g., Tr. of Oral Arg. 46–48; cf. Chin Yow, 208 U. S., at 13(observing that “the denial of a hearing cannot be estab-
lished” merely “by proving that the decision was wrong”).
Respondent thus contends that the credible-fear process
was procedurally defective for reasons that are more tech-
nical. He alleges that additional questions would have
yielded further “relevant and useful” information and that
“communication issues affected the interview” in some way.
App. 27.
Respondent’s procedural claims consequently concern not
the outright denial (or constructive denial) of a process, but
the precise way in which the relevant procedures were ad-
ministered. They raise fine-grained questions of degree—
i.e., whether the asylum officer made sufficiently thorough
efforts to elicit all “relevant and useful information” and
whether he took sufficiently thorough precautions to ensure
that respondent was “[a]ble to participate effectively” in the
interview. 8 CFR §208.30(d).
Reviewing claims hinging on procedural details of this
kind would go beyond the traditionally “limited role” that
habeas has played in immigration cases similar to this
one—even during the finality era. St. Cyr, 533 U. S., at 312.
Cite as: 591 U. S. ____ (2020) 9
BREYER, J., concurring in judgment
To interpret the Suspension Clause as insisting upon ha-
beas review of these claims would require, by constitutional
command, that the habeas court make indeterminate and
highly record-intensive judgments on matters of degree.
Respondent has not cited, and I have not found, any case of
ours suggesting that the Suspension Clause demands pars-
ing procedural compliance at so granular a level. Neither,
apparently, has the Solicitor General. See Tr. of Oral Arg.
14–15, 23–24; Brief for Petitioners 38.
Together with respondent’s status, see supra, at 3–4,
these characteristics convince me that Congress had the
constitutional power to foreclose habeas review of respond-
ent’s procedural claims. Recasting those claims as an alle-
gation that respondent’s “due process rights were violated
by” immigration officials makes no material difference.
App. 32. That alternative description changes none of the
features that, in my view, put respondent’s procedural
claims beyond the scope of any minimum habeas review
that the Suspension Clause might assure him under the cir-
cumstances.
* * *
For these reasons, I would hold that, as applied to re-
spondent, §1252(e)(2)’s limits on habeas review do not vio-
late the Suspension Clause. I would go no further.
Cite as: 591 U. S. ____ (2020) 1
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’s negative credible-fear findings.’ ” 917 F. 3d 1097,
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).