Dept. of Homeland Security v. Thuraissigiam

Whether, as applied to Respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the Suspension Clause, U.S. Const. Art. I, § 9, cl. 2.

Respondent illegally entered the country, was determined to be inadmissible, and was placed into expedited removal under 8 U.S.C. 1225(b)(1). After Respondent was denied asylum for lacking a “credible fear,” he filed a petition for a writ of habeas corpus. The district court dismissed for lack of jurisdiction under 8 U.S.C. 1252(e). The Ninth Circuit reversed and remanded, holding that limitations on Respondent’s habeas corpus review of a § 1252(e) expedited removal order are unconstitutional under the Suspension Clause, Art. I, § 9, cl. 2. Petitioner argues that the Ninth Circuit erred in its holding, stating that constitutional protections are not conferred upon illegal entry into the country but are established upon lawful entry and establishment of residence. Petitioner further argues that because review of illegal entry is treated procedurally as a seeking of initial admission, which confers no constitutional due process rights concerning the application, the existing habeus corpus review under § 1252(e) is consistent with the Suspension Clause. Petitioner finally argues that the Ninth Circuit’s holding is in direct conflict with the Third Circuit’s ruling on § 1252(e), which quotes 8 U.S.C. §1252(a)(2)(A)(iii) stating that “no court shall have jurisdiction to review the application of § 1225(b)(1) to individual aliens, including the [credible fear] determination.” Castro v. United States Department of Homeland Security, 835 F.3d 422, 431 (3d Cir. 2016). Petitioner asks the Court to resolve the circuit split.