On June 25, Justice Alito, writing for a five justice majority of the Supreme Court, issued the opinion in Department of Homeland Security v. Thuraissigiam, which is the Court's first Suspension Clause case in over a decade. The decision not only has implications for the way Suspension Clause questions will be decided in the future, but also for the immigration context in particular, given that the case involved the ability of an unlawful alien to access habeas proceedings upon his detention. The implications of the decision and its effect going forward will be the focus of this teleforum.
O.H. Skinner, Arizona Solicitor General
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.
Nick Marr: Welcome to The Federalist Society's teleforum conference call. This afternoon, we’ll be having a Courthouse Steps Decision teleforum on the Court’s recent ruling in Department of Homeland Security v. Thuraissigiam. My name is Nick Marr, and I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.
Today, we are fortunate to have with us O.H. Skinner, Solicitor General for the State of Arizona. After our speaker gives his opening remarks, we will then go to audience Q&A, so be thinking of questions and have them in mind. Thanks for sharing with us today, Solicitor. The floor is yours.
O.H. Skinner: Thank you so much. So the Thuraissigiam case is interesting on a couple different levels. To give a little bit of background, some of you on the call may be immigration law experts. At least prior to my current role, I was not.
This is a case in which a Sri Lankan national, Vijay Thuraissigiam, came into the United States from Mexico without lawful papers and was apprehended within 25 yards of the American border in a very short period of time. I don’t remember the exact time frame, but let’s just call it within minutes. And in such a case, there’s normally an expedited removal procedure where anybody who is caught in such a manner is immediately turned around and sent elsewhere. Interestingly in this case, it would probably have been an airplane back to Sri Lanka. But Vijay Thuraissigiam instead said that he wanted to go through the asylum process.
Now, as we all have witnessed in recent years, the asylum process is perhaps one of the most fraught parts of the current—well, less current because of COVID—but the ongoing problems on the southern border because a large number of people coming across the border illegally claim asylum, and that asylum process can be a slow and long process. So the expedited removal procedures at issue that Thuraissigiam went through are intentionally designed by Congress to help alleviate the problems of that process.
So relevant here, what will occur when somebody like Thuraissigiam says that they would like to apply for asylum is they need to show a credible fear in terms of returning to their former country. There’s an initial asylum officer interview in the field. If there is no credible fear determination made, if the officer determines that there is no credible fear that has been demonstrated, then a supervisor can review that determination. And then ultimately, Thuraissigiam or anybody else in his stead can go before an immigration judge who determines whether or not on a de novo basis the field officers made the appropriate decision. This all occurs very quickly.
It should be noted that a large percentage of asylum seekers trigger on at least one of those three levels, either at the asylum officer, the supervisor level, or the immigration judge level. The majority opinion by Justice Alito notes that it’s something approaching 75 percent trigger at one of those levels. Now, Thuraissigiam is one of the people who failed at all three levels. The asylum officer did not believe there was a credible fear, the supervisor did not believe that there was a credible fear, and the immigration judge did not believe that there was a credible fear.
Now, 8 U.S.C. 1252(e)(2) includes a bar on habeas review for determinations like this. So once you are done with your three different levels of review, you don’t get to go to court further. You don’t get to file a habeas. You don’t get to seek any sort of a post-conviction style relief or otherwise a review of those credibility determinations because the whole purpose is that this is an expedited removal procedure for a type of entrant for whom Congress has decided you get these three strikes and you’re out, three levels of review.
Nonetheless, Thuraissigiam goes to court, seeks to obtain habeas review and overturn the determination of no credible fear, loses in the district court. The Ninth Circuit decides that, in fact, notwithstanding the plain language of 8 U.S.C. 1252(e)(2) and its bar on habeas, that statutory bar on habeas, in fact, violated the Suspension Clause of the Constitution by depriving Thuraissigiam of the writ of habeas corpus and that it violated his due process rights because he had rights in this space and they were violated because he was going to be shipped out of the country without adequate due process and judicial review. That’s a very high level summary of the background of this case.
What’s fascinating about this opinion is that is simultaneously touches on some very intricate areas of law and also has potentially very sweeping -- it could be very sweeping in the immigration space. So at a very high level, things that are important to flag about this opinion are that it effectively resets Suspension Clause jurisprudence. There was a lot of this jurisprudence in the 2004 to 2008 period of time, much of it related to Guantanamo, much of it related to the War on Terror. And you saw opinions in the Kennedy era of the Court that were providing an expanded view of the right for a detainee to go to court, for a foreigner to go to court and vindicate rights and obtain review and potential release.
For all of you who are earnest members of The Federalist Society, some of this was a key part of Attorney General Barr’s speech to The Federalist Society this last fall in D.C. at the National Lawyers Convention discussing his view that this was an incredible overreach by the Court to begin providing extra rights to those who had taken up arms against the United States. So this was a very controversial era of Suspension Clause jurisprudence.
And what you see here in the Thuraissigiam decision is a crucial first statement of what is likely to be the post-Kennedy era view of the Suspension Clause. So what you have here is Justice Alito writing for the five-justice majority in terms of the opinion saying that the scope of the writ at the founding of the country is what was preserved with the Suspension Clause. And here, he says there’s no history of the writ being used to obtain anything other than release.
This is crucial because the big fight here is Thuraissigiam does not want to just be released from immigration detention. The United States of America is happy to release him outside the United States of America. What he wants is the ability to obtain additional judicial review in hopes that his additional judicial review will allow him to stay in America while an asylum claim is pending, perhaps be let out of detention during that process, even though he would still be in some legal sense detained.
And Justice Alito takes a very formalist, very traditional, very historical view that says the Suspension Clause as it was enacted in the Constitution protects the writ at the Founding. The writ at the Founding was designed to let you out of unlawful detention. It was not a tool to obtain additional judicial process, additional review, or to stay in the country. That’s a very strong locking-in of the historical view of the writ.
Now, the dissent by Justice Sotomayor goes at great length talking about how this ignores the Boumediene decision from the Guantanamo era, and it ignores statements in that decision about how there’s an amorphous nature to what the writ means and what you can get from the writ. Justice Breyer in the concurrence in the judgement here, he and Justice Ginsburg concur in the judgement that Thuraissigiam does not get to challenge his detention because of where he was captured, 25 yards from the border, but is unwilling to go as far as the five-justice majority in really locking in what the Suspension Clause means.
So you can really see here that this is a five-justice majority making a crucial first statement in the post-Kennedy era and cabining back, or at least setting the metes and bounds on the ground to ensure that the Suspension Clause is tied to the original understanding of the writ, the original understanding of who got to access the writ. There’s a great discussion in here about historical cases ranging from the United Kingdom to America. It’s a very interesting historical opinion.
Separately, you have the due process part of this opinion. Now, the due process part, I think, is in its own right very interesting and pairs with the USAID opinion by Justice Kavanaugh that came out, I believe, the next day that is really talking about the due process rights for foreigners, or due process rights for foreign organizations. And again, first time you’re seeing a post-Kennedy statement that starts to cabin in those due process rights.
So here, you have a focus on the lack of the U.S. ties for somebody in Thuraissigiam’s position. So there’s a lot of discussion about the fact that he’s only 25 yards into the country. He doesn’t have longstanding ties to the country. He doesn’t have a longstanding experience or connections to the United States. There’s a lot of broad language in Justice Alito’s five-justice opinion about how that’s true.
But then he goes on to say the formal status of an illegal entrant means that the illegal entrant is never legally in the United States, is always technically outside of America, even if they’re traveling through the country for years. So on the one hand, there’s an emphasis on 25 yards. On the other hand, there’s an emphasis on you’re never really here with formal ties because you were never allowed into the country. So that ends up being a very short discussion in terms of due process compared to the Suspension Clause, but it’s very consequential because it’s probably where I think you’re going to see a little bit more of the litigation going forward.
So on a going forward basis, I think the most likely thing you’re going to see—and I’m not Nostradamus here—is a lot of play around what ties are necessary to trigger due process protection in the border context. So Justice Sotomayor says, “Oh, this case is limited to 25 feet from the border.” Pretty sure she just misquoted feet to yards. “This is limited to 25 feet from the border and somebody who has no existing ties to the country.”
Like I said, there’s a lot of parts of Justice Alito’s opinion that don’t go that far. They go a lot further and they say, “No, no, it’s not tied to 25 yards. It’s about your status.” So Justice Breyer and Justice Ginsburg, the older generation of the more liberal side of the Court, they agreed in the judgement here because they agreed that 25 yards a few minutes after you’ve entered the country, you don’t have the ability to access due process and habeas here. But they leave open the idea that what if it was further, what if it was longer? So this is really -- technically, this is a 7-2 outcome, but it’s really a five-justice majority that’s setting the metes and bounds of the law in this area.
And this is a crucially important opinion because the casebooks will talk about it from the perspective of rewriting or resetting the Suspension Clause jurisprudence, but you will also have the immigration context. And the immigration context will be deeply meaningful because of that due process part, but it will also be very meaningful because this is a crucial part of how the federal government deals with the border.
There were only three amicus briefs on the merits in this case in support of the United States. One of them was by Attorney General Brnovich here in Arizona. And what that brief really flagged is that the states can’t police the border themselves. It’s been very well set forth. The federal government has to do it, and the asylum process including a dramatic increase in unsuccessful asylum applications, asylum claims that seem pretty woeful on their face, is overwhelming the border. And that was one of the key things that was producing a breakdown in the traditional structures because expedited removal is supposed to be a way to help ensure that the most valid people are getting process and that the rest of the border doesn’t just collapse under the weight of people coming in and just saying, “Aha, asylum.”
So there’s a lot in General Brnovich’s brief talking about the flood at the border, the number of asylum claims, and the burden that asylum seekers can place on border states as they are processed and then released with hopes of coming back for another hearing. So this could have a very substantial effect on the percentage of asylum seekers who are deemed to have no credible belief -- or no credible fear and no viable path in the asylum process. So you should see immediate effects on the ground. You’re going to see a lot of litigation over how far into the country and how long before due process gets triggered for somebody in this case, and you’re going to see that this could end up having consequences for any future Suspension Clause litigation, given the fact that it is the first post-Kennedy reset.
Again, this is really something where you can see a team-up of a future fight in the two-justice dissent and in the five-justice majority with the two justices who concur in the outcome really saying, “We agree with the majority on the facts here, but we’re not nearly as comfortable with their reasoning. And we don’t think we should say more. Let’s hope to live to fight another day.” And I think that’s really where this case is going to end up playing out in the future.
So with that, I tried to go through this in relatively abbreviated fashion to tee up what I thought was the most important parts of the case, but I’m happy to take any questions or answer anything else or provide more detail if people think it’s interesting.
Nick Marr: All right, we can open up for audience questions now. So I’ll just start us off to give the audience a bit of time to get in the queue. My first question is, is this the kind of case where the election outcome is going to significantly change future implications, or how important this is going forward?
O.H. Skinner: Yeah, I think that’s a good question. That is, I think, a crucial component of this is an opinion coming down in the summer of the 2020 election. The border and border enforcement and enforcement in general is truly an executive function. Now, Congress has suspended -- well, it’s not suspended. Congress had limited the access of people who come across the border like Thuraissigiam to habeas.
But it’s important to remember here that this case got to the U.S. Supreme Court because the United States of America refused to take the loss in the Ninth Circuit. And this is the kind of case where either there can be instruction to asylum officers, supervisors, and immigration judges to be even more broad in their adjudication of reasonable fear, credible fear. But more importantly, the next person who brings a case who’s 26 yards into the country and who succeeds either in the district court or in the Ninth Circuit with an adjudication that says, “Oh, as Justice Sotomayor said in dissent in Thuraissigiam, Thuraissigiam is limited to 25 yards and a few minutes. This person has been in the country for two days in the desert of Arizona, and they were found ten miles from the border. Very different, very different.”
If the United States of America doesn’t seek additional review of a district court who says, “Fine, you totally get to have a habeas petition here,” you’re going to see that this gets undermined. It requires the United States of America to diligently police and make sure that the outer bounds of this are followed, and that Justice Alito’s opinion gets the weight that it’s due. So you could say I have no idea what either administration will do going forward. Nobody knows this, but this is one where executive enforcement is the everything. And the way that the United States litigates could strongly determine what ends up happening going forward.
You really effectively are going to have, based on the numbers, the Ninth Circuit and the Fifth Circuit dealing with these questions, and so one of the key things will be what does the United States do when they take a loss on a case that is a little bit different than this case, and how different will the case be? One crucial thing is how aggressive will panels be or will district courts be in the Southern District of California or in the District of Arizona at saying, “Oh, this person who’s been here for a month is wildly different than the person who’s been here for a few minutes.”
So that’s why I think the due process part of it is actually going to be arguably the more important driver of the future litigation. The Suspension Clause is going to set the casebook law, but the due process part is going to end up driving the nuts and bolts on the ground and in the courtroom litigation.
Nick Marr: We don’t have any questions in the queue right now. I’ll just add a quick follow-up question to that. How is this or how might it be related to the issue of foreign students in terms of their standing or review? Let’s say the administration had not rescinded the rule. Could you speak a little bit to that?
O.H. Skinner: Yeah, sure. So one of the things that’s fascinating in this area of law is you seem to have some level of sliding scale. I’m not an expert in this area of law, but the more ties to America you have and the more formal allowance to be here that you have, the more you’ll see courts, including the United States Supreme Court, ensure that some process is engaged in before you lose those benefits. And so you saw this -- you can see this in particular why there’s carveouts when there’s travel restrictions on Green Card holders.
But I would say that the student’s case is at the other end of the spectrum from the 25 yards Thuraissigiam case. And so what you have in a student’s case potentially is somebody who spent three years here, spent substantial monies on a formal visa and is studying in America, potentially is renting a place, lives in a city, has ties, potentially has some sort of vaguely professional ties, even if they’re not working. That, I think, is on the far -- that’s the kind of case where you’re going to -- it’s going to be even under the USAID case where you talked about foreign organizations not having First Amendment rights in connection with the funding, the closer your connection is to America and your involvement in America and your formal status in America, the harder it is to see how the Court is going to not provide you with some level of process.
And that’s, again, where this -- this case is a fascinating case because of the reset in the Suspension Clause. It’s also a fascinating case because you can just see the majority, the concurrence in the judgement, and the dissent already starting to talk about what happens next, who does this cover next, what facts matter, and you’ve got to imagine that the student’s case would be a dream case for the Justice Breyers of the world to start to say, “Oh, this is totally different than Thuraissigiam. This is totally different than somebody who has no ties.” So again, this is just like all cases that do something that seems very important. This is going to result in a lot of fighting in the lower courts about the exact contours of what was decided here.
I think the fairest reading of Justice Alito’s majority opinion is that it says a lot more than 25 yards, and it says a lot more about what the ability of an illegal entrant is to obtain -- to have any real, true, honest, above-board connection to America. He talks about how technically being physically in the United States doesn’t mean that you are truly in the United States. You’re still -- like, you jumped -- there’s this theoretical view that you are not really in America because you were never allowed into America.
There’s language in the opinion that says that, and I think that’s an important thing to see how that plays out, what courts start to lay out, the metes and bounds, and whether -- what the United States of America does when it takes losses because this is an area of law that could easily be determined by the losses. You’re not going to have private parties intervening, especially to the extent that there’s advocacy organizations litigating on behalf of immigrants who are detained by coming across the border illegally. You may well see them, notwithstanding the individual case before them, be very careful about not taking up cases that they’re fearful of losing.
So you’re going to see that this is big picture litigation in the coming years that will largely be driven by how the United States chooses to approach this, and how many -- and whether it’s willing to take the losses and move on, or whether it’s willing to fight like they did here.
Nick Marr: Interesting. So we don’t have any questions in the queue right now, so I guess I’ll offer you a chance to give some closing remarks here. And we might wrap up a bit early.
O.H. Skinner: Yeah, I have a bad habit of trying to wrap these early.
To me, the key is to just understand the two components of this case, understand how meaningful it is that you seem to have a five-justice majority of the Court that is taking a very formalist, a very history connected, very originalist view of the Suspension Clause. Justice Thomas writes a concurrence here that goes so far as to say that even if there was a right to the writ of habeas corpus here, this wouldn’t be a suspension of it because of his view that a suspension is truly to mean if you’re being held with no rightful basis, without any process at all. And his opinion is very nuanced, but it almost says the fact that they’ve given you any level of immigration judge review, that’s enough.
So you have five justices here who’ve taken a very strong line. There’s no standards. There’s no multifactor tests. There’s no shiftiness in this at all. It’s what did the writ -- what was the view of the writ at the time that the Suspension Clause was put in? Great. It didn’t cover this at all. Nothing after it really -- none of the case law after upends it, and nothing that has changed about the writ over time matters because the Suspension Clause guaranteed you the writ as it was understood at the time. That is a very big deal in terms of this area of law, big shift from the Guantanamo cases.
And then there’s the second component, which is this ongoing, interesting fight about due process, and people from outside the country, and illegal immigration, and what due process is required that will be the on-the-ground consequence. I think both of them are deeply interesting. Both of them are very meaningful. The Suspension Clause part of this case is a resounding statement in support of formalism and originalism. That has not always been the case where the Supreme Court of the United States had five strong votes for that view of the world.
Whatever people may say about the final cases that came out of this Supreme Court term, and there’s a lot to be said, this is a very salient example of the kind of case that you may see more of where there’s a five-justice majority for a formalist, originalist, traditional view of the law in a way that is very clear and easy to implement. As much as the due process part of this case will produce additional litigation, the Suspension Clause part of the case is very cut and dry in terms of no ability to seek habeas review pursuant to the Suspension Clause for anything other than release. And that is just clear as day.
We probably wouldn’t have gotten an opinion with that level of clarity even three years ago, and that’s, I think, a very important thing to keep in mind as we watch other areas of law. Formalism ruled the day in this opinion, originalism ruled the day in this opinion, and that’s very meaningful. There’s not a lot of play in the joints on the Suspension Clause. A lot of play in the joints on due process; that’s where you’re going to see a lot of litigation.
But hopefully, that’s helpful to people. Hopefully, that gives you a takeaway. It’s 96 pages. We were able to cover it in less than half an hour. I think I didn’t leave anything out. So thank you, everyone, for joining. I really appreciate it.
Nick Marr: Solicitor, in the meantime, we’ve actually gotten two questions if you’d like to go to those. We’ll go to the first one now.
O.H. Skinner: There we go.
Caller 1: Yes. Thank you for taking my question. I think there was a decision issued by the D.C. Circuit just days before this one that also dealt with expedited removal. It’s my understanding that the regime that was in place for the purposes of this case when the petitioner was apprehended was something like 100 miles and 14 days entry across the border, but that has been expanded since then. I think it was last summer that the administration tried to expand that and make that enjoined very swiftly by the District Court in D.C, and then the D.C. Circuit, I think, days, like I said before, this issue or this decision was decided by Justice Alito came up also impacted expedited removal.
The defense sort of get at what you were suggesting with respect to the administrations could take completely different tacks. I think we’ll see more in terms of litigation decisions, but it seems like that getting to the due process concern that you were hinting at would be really where all the action would be for future litigation because if there -- if people are apprehended farther into the United States or they’ve been here for a longer period of time, then I take it that the petitioners would have a much stronger argument for increased stake and thereby greater due process rights of the United States.
O.H. Skinner: Yeah, so that goes to there’s two sides to the “What’s going to happen in the future?” One is the statute here basically focuses on the additional judicial review of the credible fear determination, but you could imagine the administration expanding where they will apply that or imposing other policy interpretive rules expanding who is eligible for expedited removal.
And there’s language in Justice Alito’s majority opinion that talks about how—and this is what I was saying—if you were never legally here, do you have real, honest connections to the country in the same way that the student would who’s been given a visa? Do you really have a credible claim to valid connections if you never were rightfully here in the first place?
But you’re exactly right that the more you move, you’re going to see -- you could easily see an administration just change the policy and say they’re not going to use expedited removal for anybody who isn’t caught more than a few feet from the border. And you could see courts like the D.C. Circuit say, “Oh, 100 miles, 14 days, that’s one -- .”
On both sides of that, the litigation side, you’re going to see courts litigating over that. And on the policy side, you could easily see a future administration change the way that they enforce. Technically, if you read, at its most robust, Justice Alito’s opinion, if an administration were to say, “We will immediately remove anybody who did not come in -- if you overstayed a visa, that might be one thing. But anybody who never had a legal status in the United States of America, everybody is subject to expedited removal.”
There’s language in Justice Alito’s majority that would support that and say that that’s fine. The due process considerations there are no different, fundamentally, than this case. I think we all would acknowledge that at least there have to be some concern that those facts would just be so wildly different, but you’re exactly right that you could see policy shifts going more aggressive than expedited removal or less aggressive. And no matter which direction they go, especially if they’re more aggressive, you could see litigation that starts to produce losses.
And then the real question just becomes does the government persevere through the loss to get back to the court and confirm the most robust view of Justice Alito’s reading or not because Justice Alito’s opinion is not just a plurality opinion. It’s a five-justice majority opinion that says very strong things about the consequences of never having legal status in the United States.
Caller 1: Thank you.
Nick Marr: All right. So we actually lost the second questioner, so --
O.H. Skinner: -- Because it was the same question, obviously.
Nick Marr: [Laughter] Your closing remarks went a bit before, but we’ll wrap up a bit early here. And on behalf of The Federalist Society, I want to thank you, Solicitor, for the benefit of your valuable time and expertise today. And thanks to the audience for dialing in today and listening to the conversation. We welcome listener feedback by email at firstname.lastname@example.org. And a reminder to keep an eye on your emails and on The Federalist Society website for upcoming teleforum events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.