Vijayakumar Thuraissigiam, the respondent in this case, is from Sri Lanka and a member of the Tamil minority there. He was arrested a mere 25 yards from the border. Customs and Border Protection determined that he was not eligible for asylum, used expedited removal, and scheduled him for deportation. He filed a petition for habeas corpus arguing that the omission of (3) renders the procedure unconstitutional.
His argument is based on what’s called the suspension clause, Article I, Section 9, Clause 2 of the Constitution, which says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
The Ninth Circuit agreed with Thuraissigiam. It relied on Boumediene v. Bush, a key Supreme Court terrorism case. Congress, in the Detainee Treatment Act, had tried to oust civilian courts from any judicial review over cases involving Guantánamo Bay detainees. But Guantánamo, though technically in Cuba, is under complete U.S. control, the Supreme Court reasoned, and thus the suspension clause applied to prisoners held there. Because the writ was not suspended, the Court concluded that the Constitution required that those prisoners have a “meaningful opportunity” to challenge the legality of their detention.
Thuraissigiam was being held on the soil of the United States itself, the Ninth Circuit reasoned. If the suspension clause applied at Guantánamo, it must surely apply inside the U.S., his lawyers argued. The appeals court ordered the district court to permit Thuraissigiam to contest the legality of his detention and impending deportation, the statute’s language notwithstanding.
In its petition for review, the government argued that this question has “significant practical importance.” It noted that “thousands of aliens each year are ordered removed via [expedited removal].” Granting them “unrestricted habeas review” would “significantly delay removal of aliens like respondent, preventing expedited removal of such aliens from being expedited at all and undermining the government’s ability to control the border.”
Thuraissigiam is represented by the American Civil Liberties Union. Its brief in opposition argued that, given Boumediene and other precedents, “as a person detained within U.S. borders, he was entitled to invoke the Suspension Clause … That he was not legally admitted into the country does not alter that result, nor does the fact that he was apprehended only a short distance over the border.”
Read: The thousands of children who go to immigration court alone
The “practical importance” of the case was greatly heightened on July 23, when DHS announced a sweeping expansion of expedited removal. As practiced until then, the expedited procedure was applied only to immigrants detained within 100 miles of the border—and only if they could not prove they had been in the U.S. for more than two weeks. But under the new regulation, Immigration and Customs Enforcement will apply expedited removal anywhere in the U.S—to immigrants who cannot prove they have been in the U.S. for two years.