THE SUSPENSION CLAUSE AFTER DEPARTMENT OF HOMELAND SECURITY V. THURAISSIGIAM

The district court dismissed the petition,6 but the Ninth Circuit reversed, finding that the elimination of habeas review for those facing expedited removal violated the Suspension Clause.7 In reaching its conclusion, the Ninth Circuit disagreed with the Third Circuit which had previously upheld Congress's elimination of habeas review of expedited removal against a Suspension Clause challenge.8 The Supreme Court granted certiorari9 and reversed.10 The five-Justice majority opinion, authored by Justice Alito, held that the Suspension Clause did not apply because Thuraissigiam's challenge-which the Court characterized as asserting a right to remain in the United States or, alternatively, to obtain additional administrative process to attain that result, rather than seeking simple release from custody-did not fall within historical core of habeas corpus protected by the Suspension Clause.11 The Court further concluded that its prior decisions, which had reviewed legal challenges by noncitizens facing immigration removal in the face of congressional restrictions on judicial review, reflected an exercise of statutory construction rather than an interpretation of the Suspension Clause.12 Thuraissigiam also distinguished the Court's most recent Suspension Clause ruling, Boumediene v. Bush,13 determining that the petitioners there, alleged "enemy combatants" held at Guantanamo Bay, did not seek to enter the United States, but instead only sought release from U.S. military custody.14 Justice Alito then reached out to decide whether the Due Process Clause independently entitled Thuraissigiam to judicial review,15 even though Thuraissigiam had only raised a due process claim on the merits based on flaws in the administrative "credible fear" process,16 and had maintained that the Court first needed to find habeas jurisdiction under the Suspension Clause before reaching any due process issue.17 The Court nevertheless ruled that Thuraissigiam had no due process right to any additional protections in challenging his expedited removal beyond what Congress had provided because he was seized just inside the border after entering the country without inspection.18 The Court reached this conclusion despite its prior precedents stating that the Due Process Clause protected all persons inside the country regardless of whether they had entered without inspection or how far inside the border they had been seized.19 Justice Thomas wrote separately to express his view that the Suspe