The Boundaries of Habeas: Due Process, the Suspension Clause, and Judicial Review of Expedited Removal Under the Immigration and Nationality Act

Abstract

Recent events have highlighted the vexed relationship between habeas corpus, due process, and immigration law. The Supreme Court may be poised to review the Ninth Circuit's decision in Thuraissigiam v. Dep’t of Homeland Security holding that curbs on judicial review in the Immigration and Nationality Act's expedited removal provisions violate the Suspension Clause. At the same, the Trump administration has expanded expedited removal's temporal and geographic scope, making its statutory curbs on judicial review applicable to the United States' interior for foreign nationals who have been in the country for less than two years. That expansion may severely strain the U.S. connections of foreign nationals affected by the change.

Both the Ninth Circuit's decision in Thuraissigiam and the Department of Homeland Security's expansion of expedited removal neglect the relationship between habeas and other constitutional rights, such as procedural due process. The Ninth Circuit's decision disregarded the traditional view that foreign nationals seeking admission are requesting a privilege, not invoking an enforceable constitutional right. In disaggregating habeas and due process, the Thuraissigiam court read too broadly the Supreme Court's decision in Boumediene v. Bush making habeas available to Guantanamo detainees. The government's expansion of expedited removal discounts the role in due process analysis played by the U.S. ties of foreign nationals who have already entered the United States. Through expanded expedited removal, the government wants to relegate entrants to the same unreviewable privilege-not-rights regime now occupied by candidates for admission.

The Article seeks to remedy the deepening confusion wrought by both the Ninth Circuit and the expansion of expedited removal. Instead of disaggregating due process and habeas, the Article reaffirms their doctrinal and practical relationship. In place of the overly intrusive review that Thuraissigiam contemplates, the Article suggests a new option, inquisitorial integrity, that builds on the good-faith judging stressed in the Supreme Court's decisions on extradition and transfers of custody to a foreign state. That option — more deferential than the Ninth Circuit's approach in Thuraissigiam — nonetheless introduces judicial review into admission cases, where nonreviewability has traditionally held sway. The Article similarly invokes the interaction of due process and habeas to find that more rigorous error-correction judicial review is required to disrupt the U.S. ties of individuals subject to expanded expedited removal.