February 7, 2023

Volume XIII, Number 38


February 07, 2023

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February 06, 2023

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Supreme Court Decides Department of Homeland Security v. Thuraissigiam, No. 19-161

On June 25, 2020, the U.S. Supreme Court decided Department of Homeland Security v. Thuraissigiam, holding that the Illegal Immigration Reform and Immigrant Responsibility Act’s limitations neither violated due process nor unconstitutionally suspended the writ of habeas corpus by precluding courts from using a writ to review immigration officials’ decision that an alien seeking entry into the country did not have a credible fear of persecution.

Respondent Vijayakumar Thuraissigiam, a Sri Lankan national, was stopped at the border trying to enter the United States. A border official who questioned him to determine whether he had a credible fear of being persecuted if he was returned to Sri Lanka reported that he denied fearing persecution based on his political opinions, race, or other protected characteristics. A supervising officer agreed with the asylum officer’s finding of no credible fear and signed a removal order. After taking additional testimony from Respondent, an immigration judge affirmed on a de novo review.

Respondent then filed a federal habeas petition asserting that he feared persecution based on his political views and Tamil ancestry, that these fears establish a credible fear of persecution which would allow him to make an asylum claim, that immigration officials deprived him of an opportunity to establish his credible-fear claim, and that immigration officials failed to apply the correct standard when assessing his claims. The United States District Court for the Southern District of California dismissed his petition, holding that 8 U.S.C. §§ 1252(a)(2) & (e)(2) barred review and that they did not violate the Suspension Clause. The Ninth Circuit reversed, holding that section 1252(e)(2) violated the Suspension Clause and that Respondent was entitled to procedural due process protections.

The Supreme Court granted review and reversed. The Court held that Section 1252(e)(2) did not violate the Suspension Clause because, at the time the Constitution was adopted, the writ of habeas corpus was limited to challenging the legality of one’s detention. It did not entitle a petitioner to claim the right to enter into a country, remain in a country, or obtain administrative review leading to those results. Because Respondent’s habeas petition did not seek release from custody or otherwise challenge his detention, any habeas writ guaranteed by the Suspension Clause remained available to Respondent, irrespective of the limitations section 1252(e)(2) placed on habeas review.

The Court further concluded that Section 1252(e)(2) did not violate Respondent’s due process rights. Aliens who have not yet been granted entry to the United States have only those due process rights granted by Congress. Because respondent had been afforded those rights, Section 1252(e)(2) did not violate due process.

The Court remanded the case to the Ninth Circuit with instructions that the petition for a writ of habeas corpus be dismissed.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh joined. Justice Thomas filed a concurring opinion. Justice Breyer filed an opinion concurring in the judgment, in which Justice Ginsburg joined. Justice Sotomayor filed a dissenting opinion, in which Justice Kagan joined.

© 2023 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 177

About this Author

Robert Gallup Products Liability Attorney Faegre Drinker

Robert Gallup solves product liability litigation challenges for clients in a variety of industries.

Before joining the firm, Robert served as a law clerk for the Honorable Chief Justice Lorie S. Gildea of the Minnesota Supreme Court. While in law school, he also served as a legal extern on the Court of Appeals for the 8th Circuit with the Honorable Diana E. Murphy.

Personal Interests

When Robert isn’t in the office, he enjoys bicycling, refinishing furniture, gardening and cooking.

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Aaron D. Van Oort Appellate Attorney Faegre Drinker Biddle & Reath Minneapolis, MN

Aaron Van Oort is a legal strategist, class action litigator and appellate lawyer who co-chairs Faegre Drinker's appellate advocacy group. A former law clerk for Justice Antonin Scalia and a Fellow of the American Academy of Appellate Lawyers, Aaron is a voice for clients in trial and appellate courts throughout the country.

Appellate Advocacy

Aaron has represented clients in 12 of the 13 United States Courts of Appeal, as well as in the United States Supreme Court and in state appellate courts. He is an editor of the 8th Circuit Practice Manual (8th ed. 2018) and a...